detainee相关问题

Defining status:
*Fundamental rights:
API Art:75
Fundamental rights:
The following acts are and shall remain prohibited at any time and in any place
whatsoever, whether committed by civilian or by military agents:
(a) violence to the life, health, or physical or mental well-being of persons, in

particular:1
I. combatant：
1.regular armed forces and irregular armed forces that meet the criteria of the Third
Geneva Convention or Additional Protocol I
GCIII，ARTICLE 4
A. Prisoners of war, in the sense of the present Convention, are persons belonging to
one of the following categories, who have fallen into the power of the enemy:
(1) Members 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.
(2) Members 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, fulfil the
following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of
war.
(3) Members of regular armed forces who profess allegiance to a government or an

authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members
thereof, such as civilian members of military 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
1
Additional Protocol I to the Geneva Conventions,Article 75(1)(2)(a)
identity card similar to the annexed model.
(5) Members 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.
(6) Inhabitants 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.
B. The following shall likewise be treated as prisoners of war under the present
Convention:
(1) Persons belonging, or having belonged, to the armed forces of the occupied
country, if the occupying Power considers it necessary by reason of such allegiance to
intern them, even though it has originally liberated them while hostilities were going
on outside the territory it occupies, in particular where such persons have made an
unsuccessful attempt to rejoin the armed forces to which they belong and which are
engaged in combat, or where they fail to comply with a summons made to them with
a view to internment.
(2) The persons belonging to one of the categories enumerated in the present Article,
who have been received by neutral or non-belligerent Powers on their territory and
whom these Powers are required to intern under international law, without prejudice
to any more favourable treatment which these Powers may choose to give and with
the exception of Articles 8 , 10, 15 , 30, fifth paragraph [, 58 -67, 92 , 126 and,
where diplomatic relations exist between the Parties to the conflict and the neutral or
non-belligerent Power concerned, those Articles concerning the Protecting Power.
Where such diplomatic relations exist, the Parties to a conflict on whom these persons
depend shall be allowed to perform towards them the functions of a Protecting Power
as provided in the present Convention, without prejudice to the functions which these
Parties normally exercise in conformity with diplomatic and consular usage and
treaties.
C. This Article shall in no way affect the status of medical personnel and chaplains as
provided for in Article 33 of the present Convention.
commentary:
exception:Protections of POW
The present Convention shall apply to the persons referred to in Article 4 from
the time they fall into the power of the enemy and until their final release and
repatriation.
Should 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.2
2
Geneva Convention (III) on Prisoners of War,1949, Article 5
Article 5(2)3 establishes a default position to ensure that if there is any doubt about
the status of a person who has committed a belligerent act and who has fallen into the
hands of the enemy, they must receive the protection of the Convention until a status
determination is made.Put simply, protection must come first, and only then a status
determination. The person must enjoy all the guarantees of the Convention as well as
the benefits of prisoner-of-war status until their status has been determined by a
competent tribunal.4
case：
NALETILIC ：
The Prosecution stated in its Final Brief that, as a result of the difficulty in
distinguishing between civilians and prisoners of war, it “will only apply the lower
standards set by the Geneva Convention III, and consider all victims of forced labour
as prisoners of war”. The Martinovi} Defence does not specifically address this
argument but only refers to labour by prisoners of war in its Final Brief. The Chamber
interprets this statement by the Prosecution as an admission that it has failed to
establish the status of the victims.However, in light of the fact that the persons
forced to undertake unlawful labour were all detained in various detention centres, the
Chamber accepts that the victims were all protected persons within the meaning of
Geneva Convention III or IV, depending on their status either as a prisoner of war or
as a civilian. The Chamber accepts that the application of the regime laid out in
Geneva Convention III in relation to forced labour is more favourable to the accused
than the protection afforded to civilian detainees under Geneva Convention IV. As
such, the Chamber will apply the lower standard laid out in Geneva Convention
III relating to the labour of prisoners of war.

API，Article 44-- Combatants and prisoners of war
1. Any combatant, as defined in Article 43, who falls into the power of an adverse
Party shall be a prisoner of war.
2. While all combatants are obliged to comply with the rules of international law
applicable in armed conflict, violations of these rules shall not deprive a combatant of
his right to be a combatant or, if he falls into the power of an adverse Party, of his
right to be a prisoner of war, except as provided in paragraphs 3 and 4.
3. In order to promote the protection of the civilian population from the effects of
hostilities, combatants are obliged to distinguish themselves from the civilian
population while they are engaged in an attack or in a military operation preparatory
to an attack. Recognizing, however, that there are situations in armed conflicts where,
owing to the nature of the hostilities an armed combatant cannot so distinguish
himself, he shall retain his status as a combatant, provided that, in such situations, he
carries his arms openly:
(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is engaged in a military
deployment preceding the launching of an attack in which he is to participate.
3
Geneva Convention (III) on Prisoners of War,1949, Article 5(2)
4
para.1099 Commentary of 2020 on Geneva Convention (III) on Prisoners of War,1949, Article 5
Acts which comply with the requirements of this paragraph shall not be considered as
perfidious within the meaning of Article 37, paragraph 1 (c).
4. A combatant who falls into the power of an adverse Party while failing to meet the
requirements set forth in the second sentence of paragraph 3 shall forfeit his right to
be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all
respects to those accorded to prisoners of war by the Third Convention and by this
Protocol. This protection includes protections equivalent to those accorded to
prisoners of war by the Third Convention in the case where such a person is tried and
punished for any offences he has committed.
5. Any combatant who falls into the power of an adverse Party while not engaged in
an attack or in a military operation preparatory to an attack shall not forfeit his rights
to be a combatant and a prisoner of war by virtue of his prior activities.
6. This Article is without prejudice to the right of any person to be a prisoner of war
pursuant to Article 4 of the Third Convention.
7. This Article is not intended to change the generally accepted practice of States with
respect to the wearing of the uniform by combatants assigned to the regular,
uniformed armed units of a Party to the conflict.
8. In addition to the categories of persons mentioned in Article 13of the First and
Second Conventions, all members of the armed forces of a Party to the conflict, as
defined in Article 43of this Protocol, shall be entitled to protection under those
Conventions if they are wounded or sick or, in the case of the Second Convention,
shipwrecked at sea or in other waters.
API Art .45 :

3.Protection of persons who have taken part in hostilities
Any person who has taken part in hostilities, who is not entitled to prisoner-of-
war status and who does not benefit from more favourable treatment in
accordance with the Fourth Convention shall have the right at all times to the
protection of Article 75 of this Protocol. In occupied territory, any such person,
unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the
Fourth Convention, to his rights of communication under that Convention. 5
2. Direct participants in hostilities (“unlawful combatants”) ：
API，Article 51-- Protection of the civilian population
3. Civilians shall enjoy the protection afforded by this Section, unless and for such
time as they take a direct part in hostilities.
GCIII，Article 13 -- Protection of the civilian population
3. Civilians shall enjoy the protection afforded by this Part, unless and for such time
as they take a direct part in hostilities.
cases：
1.ICTY Mucić
“Were the Victims Protected Civilians?
The operative part of article 4 of the Fourth Geneva Convention for the present
purposes is clearly the first paragraph, in particular the requirement that persons be
5
Article 45(3) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol I), 8 June 1977.
“in the hands of a party to the conflict or occupying power of which they are not
nationals” in order to be considered “protected”. It is this phrase which has
engendered such intense discussion of the concept of nationality by the parties in this
case, as well as in other cases, and in recent literature on this area of international
humanitarian law. It is also here that there arises a connection with the issue of the
nature of the armed conflict, for clearly a showing that individuals are “in the hands
of” a party of foreign nationality would generally lead to the conclusion that the
conflict is international in nature. Conversely, if individuals are deemed not to be
protected by the Fourth Geneva Convention on the grounds that they are of the same
nationality as their captors, it may well be, although it does not necessarily follow,
that the relevant conflict is an internal one.
It is necessary to note that the expression “in the hands of” is used in article 4
in a general sense. It is not to be understood merely in the physical sense of being held
prisoner, but indicates that the civilian in question is in territory which is under the
control of an opposing party to the conflict.”6
2. Celebici :
“The evidence before the Trial Chamber indicates that a number of the civilians
detained in the Celebici prison-camp at the time of their capture were in possession of
weapons which could have been used, or were in fact used, against the forces of
Bosnia and Herzegovina in the Konjic area. It is difficult to ascertain precisely how
many of those detained in the Celebici prison-camp in this way participated in acts of
resistance against the TO, HVO and MUP forces and, therefore, arguably could have
been lawfully detained. According to several witnesses, 100 to 105 detainees dmitted
in interviews conducted after their detention that they were in possession of weapons
and that they participated actively in the defence of their villages. As previously
noted by the Trial Chamber, the security measures which detaining forces are entitled
to take are not specified in the relevant provisions of the Geneva Conventions, and the
measure of activity deemed prejudicial to the internal or external security of the
detaining power which justifies internment is therefore left largely to the discretion of
the authorities of the detaining power itself. The Trial Chamber accordingly refrains
from determining whether the confinement of this category of civilians actually was
necessary for the security of the detaining forces, and therefore justifiable under
international humanitarian law.
.However, it is clear that the confinement of a number of the civilians detained in
the Celebici prison-camp cannot be justified by any means. While it must be
recognised that a detaining power is given a large degree of discretion to determine
the behaviour which it deems detrimental to its security, it is clear to the Trial
Chamber that several of the civilians detained in the Celebici prisoncamp cannot
reasonably have been considered to pose any sufficiently serious danger to the
detaining forces as to warrant their detention.”7
3.Prlić :
“i. Protected Persons
The Chamber recalls that persons who do not enjoy protection under the first
three Geneva Conventions fall within the scope of application of the Fourth Geneva
Convention relative to the Protection of Civilian Persons in Time of War, provided
that the requirements of Article 4 are satisfied.
Civilian persons under the Third Geneva Convention are defined by their
6
see，paras245-246,ICTY,Case No.: IT-96-21-T
7
see，paras1131-1132，,ICTY,Case No.: IT-96-21-T
exclusion with respect to the armed forces.Any person who is not a combatant is
considered a civilian as defined under Article 4(A)(1), (2), (3) and (6) of the Third
Geneva Convention as well as under Article 43 of Additional Protocol I. In case of
doubt, the person shall be considered by the party to the conflict or the occupying
power to be a civilian.
Article 4(1) of the Fourth Geneva Convention defines as “protected persons”
those persons “who, at a given moment and in any manner whatsoever, find
themselves, in case of a conflict or occupation, in the hands of a Party to the conflict
or Occupying Power of which they are not nationals”. Thus, those protected are, first,
civilians in enemy or occupied territory or in a combat zone, who are not nationals of
the belligerent State in power in whose hands they find themselves, or who are
stateless persons.
Both civilians who were in the territory prior to the outbreak of the conflict or
the occupation and those who arrived later enjoy the protections conferred by the
Fourth Geneva Convention. Moreover, the expression “in the power of” has a very
broad meaning, which exceeds the bounds of direct authority. Thus, “[t]he mere fact
of being in the territory of a Party to the conflict or in occupied territory implies that
one is in the power or hands‟ of the Occupying Power”.8
Whether consitute violation of the Laws or Customs of War：

“The Appeals Chamber has, in addition, identified four requirements which
must be satisfied in order for a violation of international humanitarian law to fall
within the scope of Article 3: (i) the violation must infringe a rule of international
humanitarian law; (ii) the rule must be customary in nature, or if it belongs to treaty
law, the required conditions must be satisfied; (iii) the violation must be serious, in
that it must constitute an infraction of rules protecting important values, and it must
entail grave consequences for the victim, and (iv) the violation of the rule must entail,
under customary or conventional law, the individual criminal responsibility of its
perpetrator.9
exception:Protections of POW
The present Convention shall apply to the persons referred to in Article 4 from
the time they fall into the power of the enemy and until their final release and
repatriation.
Should 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.10
Article 5(2)11 establishes a default position to ensure that if there is any doubt about
the status of a person who has committed a belligerent act and who has fallen into the
hands of the enemy, they must receive the protection of the Convention until a status
determination is made.Put simply, protection must come first, and only then a status
determination. The person must enjoy all the guarantees of the Convention as well as
8
paras .101-104,ICTY,Case No.: IT-04-74-T
9
Tadić Decision on Jurisdiction, para. 94. See also Kunarac Appeals Judgement, para. 66.
10
11
Geneva Convention (III) on Prisoners of War,1949, Article 5(2)
the benefits of prisoner-of-war status until their status has been determined by a
competent tribunal.12
II.noncombatant：
3. Indirect participants in hostilities (imperative security threats)
GCIII Art4A(4)
(4) Persons who accompany the armed forces without actually being members thereof, such as
civilian members of military 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.
4.Nonparticipants in hostilities (“innocent civilians”)
GCIV:ARTICLE 4
Definition of protected persons
Persons protected by the Convention are those who, at a given moment and in any
manner whatsoever, find themselves, in case of a conflict or occupation, in the hands
of a Party to the conflict or Occupying Power of which they are not nationals.
Internment/detention:
First, some of the above examples constitute indirect participation in the abstract. In
the specific context of detention, a state needs to establish not only that an
individual’s conduct amounts to indirect participation, but also that detention is the
only means available—that detention is “absolutely necessary”38 —to defend against
the threat posed by the conduct. Second, according to the ICRC Commentaries, states
have significant latitude in defining actions that constitute indirect
participation.However,that latitude is accompanied by constraints. As Richard Baxter
12
noted, measures that abuse the state’s discretion are “ultra vires and may subject their
authors to criminal penalties under the international law of war.”13
·······
Table 1 (p. 56) represents the international legal regime that long preexisted
September 11,
2001. The table helps show the regime with respect to different types of coercive
measures and classes of actors. For students of international law, this scheme is
relatively straightforward. It may be helpful, however, to explicate the table— hence
the regime— by noting its consistency with various postulates concerning the
application of IHL. Consider a few examples. First, it would be absurd to accept an
interpretation of IHL that results in a state’s possessing the legal authority to kill actor
X on purpose but lacking the legal authority to detain actor X.41 States would
otherwise have a perverse incentive to kill individuals who pose a military threat if the
alternative were to let them go free. Thus, if a cell in column I is positive (the state
may kill), the corresponding cell in column III will also be positive (the state may
detain). Second, if the law permits states to subject lawful combatants to measure Y,
the law a fortiori permits states to subject unlawful combatants to that same
measure.42 Thus, if a cell in row A is positive (e.g., cell 1), the corresponding cell in
row B (e.g., cell 4) will also be positive. Third, it is not illogical for a state to have the
power to kill actor X deliberately, but to lack the power to prosecute actor X.
Combatant immunity afforded a lawful combatant is a case in point..14
GCIII Art 21
“General observation：
The Detaining Power may subject prisoners of war to internment. It may
impose on them the obligation of not leaving, beyond certain limits, the camp
where they are interned, or if the said camp is fenced in, of not going outside its
perimeter. Subject to the provisions of the present Convention relative to penal
and disciplinary sanctions, prisoners of war may not be held in close confinement
except where necessary to safeguard their health and then only during the
continuation of the circumstances which make such confinement necessary.”15
commentary：
Internment is a preventive measure; interning prisoners of war for the duration
of active hostilities aims to ensure that captured enemy personnel are not able to
participate again in the hostilities, which would pose a military threat to the Detaining
Power. With the number of active combatants reduced, the military forces of the
opposing Party are effectively weakened.
Internment is to be distinguished from ‘confinement’ as used in the Third
Convention, which denotes detention in execution of disciplinary or penal
punishment.
13
p.55 Goodman, R. (2009). The Detention of Civilians in Armed Conflict. American Journal of International
Law, 103(1), 48-74. doi:10.2307/20456721
14
p.55 Goodman, R. (2009). The Detention of Civilians in Armed Conflict. American Journal of International
Law, 103(1), 48-74. doi:10.2307/20456721
15
The restriction of liberty of prisoners of war under the authority of this provision
has no punitive character.
The fact that internment has no punitive character informs the regime of
internment set out in the subsequent chapters of the Third Convention: living
conditions in prisoner-of-war camps are not like prison settings but offer access, for
example, to canteens, sanitary facilities, common or recreation areas and to open air,
as required by the Convention.
Additional restrictions on internment set out in the Convention are that prisoners
may be interned only in premises located on land (Article 22), not in danger zones
(Articles 19(1) and 23(1)), and only exceptionally in penitentiaries (Article 22).
Article 21 provides the Detaining Power the authority to intern captured military
personnel. The Detaining Power has discretion to decide which of them should remain
interned for the duration of active hostilities, since they are still part of the military
forces of the enemy and as such a threat to the Detaining Power. There may be cases
however, where certain prisoners would not pose such a threat and where the
Detaining Power may consider that their internment is not or no longer required to
protect its security interests.16
An internee likewise has the right to challenge, with the least possible delay, the
lawfulness of their detention.The review of lawfulness of internment must be carried
out by an independent and impartial body. It should be noted that, in practice,
mounting an effective challenge will presuppose the fulfilment of several procedural
and practical steps, including: i) providing internees with sufficient evidence
supporting the reasons for their internment; ii) ensuring that procedures are in place to
enable internees to seek and obtain additional evidence; and iii) making sure that
internees understand the various stages of the internment review process and the
process as a whole.17
In non-international armed conflicts, neither common Article 3 nor Additional
Protocol II contain a similar framework for internment. It is a requirement under
customary international law, however, that any detention must not be arbitrary.18
Detention is a regular occurrence in both international and non-international
armed conflicts and is practised by State and non-State Parties alike. For detention in
relation to a criminal process, common Article 3 imposes the obligation of fair trial.
This section deals with detention outside a criminal process, also known as
internment. The term ‘internment’ refers to detention for security reasons in situations
of armed conflict, i.e. the non-criminal detention of a person based on the serious
threat that their activity poses to the security of the detaining authority in relation to
an armed conflict.19
internment cannot be taken on collective basis
“ Although the fundamental human rights of the persons concerned are not,
generally speaking, in any danger as a result of some of the administrative measures
which might be taken in relation to them, this is not necessarily so in the case of
assigned residence or internment. The experience of territory, are exceptional
measures to be taken only after careful consideration of each individual case.Such
measures are never to be taken on a collective basis.”
case：
Celebici:
16
paras.1932-1937 Commentary of 2020 on Geneva Convention (III) on Prisoners of War,1949, Article 21
17
paras.761 Commentary of 2020 on Geneva Convention (III) on Prisoners of War,1949, Article 3
18
paras.756 Commentary of 2020 on Geneva Convention (III) on Prisoners of War,1949, Article 3
19
paras.754,755 Commentary of 2020 on Geneva Convention (III) on Prisoners of War,1949, Article 3
Only a small part of the compound was utilised in 1992 for the detention of prisoners
and it is solely with this part that the Trial Chamber is concerned. At the entrance gate
there is a small reception building (hereafter “Building A”) beside a larger
administration building (hereafter “Building B”). At the time of inspection by Mr.
Beelen, Building B contained rooms with beds as well as a kitchen, a canteen and
some toilets and a shower. Opposite these is a small building which contains water
pumps (hereafter “Building 22”). To the north-east, beside a wall, there is the entrance
to a tunnel (hereafter “Tunnel 9”) which extends about 30 metres downwards into the
ground and leads, after a steel door, to a fuel measuring and distribution station. The
tunnel is only 1.5 metres wide and 2.5 metres high. There is a trapdoor and manhole
leading up from behind the steel door to the outside, above. On the other side of the
camp, beside other similar buildings, there is a large metal building, 30 metres long
and 13 metres wide, (hereafter “Hangar 6”) which is fully enclosed and has doors
down one side.”20
soft law：
The Copenhagen Process on the Handling of Detainees in International Military
Operations
The legal basis [of detention]
“The legal basis for military forces to detain persons typically derives from the
mandate of a given operation. The types of operations relevant for this non-paper are
typically based on a Chapter VII resolution of the United Nations Security Council
[UNSC]. A UNSC resolution may contain or refer to text on detention, and
supplementary regulation may be found, for example, in standard operating
procedures, rules of engagement and status-of-forces agreements, although the latter
would also represent an agreement with the territorial State. The wording in these
instruments on detention, however, is not always clear, if the issue is addressed at all.
In these circumstances, the mandate to detain is often based on the traditional
wording of UNSC resolutions giving a military force the mandate to ‘take all
necessary measures’ in order to fulfil the given task. When a UN resolution is unclear
or contains no text on the mandate to detain, the right to self-defence may contain an
inherent yet limited right to detain. However, this may leave the question open as to
the scope of the mandate, e.g., what type of detention is possible in self-defence and
whether it is possible only to detain persons for reasons of security or also to detain
e.g. common criminals.
There is therefore a need for the Security Council to address this issue and clearly
establish the legal basis for the right of the force to detain in a given operation. A
clear mandate on detention will improve the possibilities for soldiers on the ground to
take the right decisions on detention matters and to avoid different interpretations on
the understanding of an ambiguous SC resolution. This need is further underlined by
the fact that the right to detain might subsequently be challenged in court, and that
officials/soldiers of troop-contributing States may be subject to prosecution for
unlawful confinement under the grave breaches regime of Geneva Convention (IV)”21
GCIII Art 22
“Prisoners of war may be interned only in premises located on land and affording
every guarantee of hygiene and healthfulness. Except in particular cases which are
20
paras.144-145 ICTY Case No.: IT-96-21-T
21
see,p52 CASE OF AL-JEDDA v. THE UNITED KINGDOM,The European Court of Human Rights, sitting as a
Grand Chamber
justified by the interest of the prisoners themselves, they shall not be interned in
penitentiaries.
Prisoners of war interned in unhealthy areas, or where the climate is injurious for
them, shall be removed as soon as possible to a more favourable climate.”22
Commentary：
The Detaining Power may house prisoners of war in purpose-built premises,
but it may also use existing installations, provided that they meet all the requirements
of the Convention. The only type of premises that are in principle excluded are
penitentiaries.23
With regard to the premises themselves, the fact that they must afford every
guarantee of hygiene and healthfulness implies that no dangerous substances which
may affect the health of the prisoners may be used in their construction. It also means
that the Detaining Power must properly maintain the premises in which prisoners of
war are housed.
Characteristics which may have an impact on whether a place is suitable for
the housing of prisoners include climatic conditions, access to essential services,
surrounding fauna and flora, and the presence of dangerous installations in the
vicinity. Examples of violations of this provision include: constructing a camp in a
locality where essential resources such as water are not available and there is no
reasonable guarantee of supply of such resources by other means and constructing a
camp in an area that has been chemically contaminated.24
There are two reasons for the prohibition on interning prisoners of war in
penitentiaries. The first relates to the differing nature and purpose of the internment
of prisoners of war and detention under criminal law. The latter seeks to punish the
convicted person, often involving a restriction of liberty of movement that goes
beyond that which is provided for in Article 21(1) for prisoners of war.
Penitentiaries are usually constructed and run with that purpose in mind. Often
there are cells, and prisoners cannot move freely within the facility; individual cell
doors may be locked; and the detainees have to follow a daily schedule decided for
them. Internment of prisoners of war, on the other hand, is not a punishment but a
preventive measure, designed to stop the prisoners from participating again in
hostilities against the Detaining Power.A penitentiary structure is therefore in
principle not appropriate for the internment of prisoners of war.25
This raises the question whether a Detaining Power can house prisoners of war in
former penitentiaries that are no longer used for that purpose. While this takes away
the security concerns mentioned above, the building as such may still not be suitable
for prisoners of war. Therefore, before a Detaining Power may house prisoners of war
in a building that was formerly used as a penitentiary, it must make sufficient
adjustments to ensure that the building fulfils the conditions laid down in the
Convention26
Article 22(1) provides for one exception to the prohibition on interning prisoners
of war in penitentiaries, i.e. ‘in particular cases which are justified by the interest of
the prisoners themselves’. This formulation is rather broad and could cover a range of
22
Geneva Convention (III) on Prisoners of War,1949, Article 22（1）（2）
23
24
paras 1989-1990 Commentary of 2020 on Geneva Convention (III) on Prisoners of War,1949, Article 22
25
para 1995 Commentary of 2020 on Geneva Convention (III) on Prisoners of War,1949, Article 22
26
scenarios. The Detaining Power must apply this exception in good faith and not use it
to circumvent the general prohibition or other requirements set down by the
Convention for the housing of prisoners of war. An example of a case in which
internment in a penitentiary facility may be in the interest of prisoners of war is when
the Detaining Power has only one or a very small number of prisoners in its hands and
housing them separately, sometimes for a prolonged period, may lead to their social
isolation. Provided that the Detaining Power does all in its power to mitigate the risks
for the prisoners’ safety, lodging them in a penitentiary may in this case be in the
prisoners’ interest. The prisoners of war must then be allowed to enjoy as much
freedom of movement as is feasible within the facility.27
GCIII Art 23
“No prisoner of war may at any time be sent to or detained in areas where he may be
exposed to the fire of the combat zone, nor may his presence be used to render certain
points or areas immune from military operations.
Prisoners of war shall have shelters against air bombardment and other hazards of
war, to the same extent as the local civilian population. With the exception of those
engaged in the protection of their quarters against the aforesaid hazards, they may
enter such shelters as soon as possible after the giving of the alarm. Any other
protective measure taken in favour of the population shall also apply to them.”28
commentary：
The first part of Article 23(1) prohibits Detaining Powers from sending prisoners
of war to, or detaining them in,areas where they may be exposed to fire from the
combat zone. This provision should be read in conjunction with Article 19(1), which
requires that as soon as possible after prisoners of war fall into the hands of the
enemy, they must be evacuated to camps that are far enough removed from the
combat zone for the prisoners to be out of danger.The ‘combat zone’ refers to any
area where hostilities are taking place.29
Article 19(1) lays down the principle that prisoners of war must be evacuated as
soon as possible from the combat zone where they have fallen into the power of the
enemy, so that they are protected from the effects of military operations. ‘Combat
zone’ is the term used in paragraph 1, while paragraph 2 speaks of the ‘danger zone’
and paragraph 3 of the ‘fighting zone’. The notions ‘combat zone’ and ‘fighting zone’
have the same meaning; they refer to the area where the prisoners of war have fallen
into the power of the enemy and where hostilities are taking place. The term ‘danger
zone’ is broader and could be everywhere. It covers the entire area in which dangers
inherent to military operations present themselves.In some contemporary armed
conflicts, the entire territory controlled by one Party may fall under this term, due to
the risk of air and missile attacks. In such situations, Article 19(2) covers at least the
area of military ground operations and the tactical measures supporting them from the
air and the sea.30
The first sentence of Article 23(2) referred specifically to the ‘local civilian
population’ whereas this last sentence refers to the ‘population’ more generally.
Although not as clearly stated as in the first sentence, this provision does, first of all,
27
28
Geneva Convention (III) on Prisoners of War,1949, Article 23（1)（2）
29
30
refer to the local civilian population. Again, protective measures may vary depending
on the location of the camp, for example whether it is in a rural or urban area. The
protective measures that prisoners of war are entitled to is based on local standards.
Second, ‘the population’ may also refer to the population in a particular
industry, regardless of the location of the camp or labour detachment. For
example, if civilian workers are issued with special equipment (gas masks, protective
clothing, etc.) to use during air raids, such equipment must also be made available to
prisoners of war doing the same type of work.
GCIII Art 24
“Transit or screening camps of a permanent kind shall be fitted out under conditions
similar to those described in the present Section, and the prisoners therein shall have
the same treatment as in other camps.”31
Article 24 makes a distinction between the conditions in transit or screening

camps, and the treatment enjoyed by prisoners. It requires that the conditions in
permanent transit or screening camps be ‘similar’ to those described in the present
section of the Convention. This should not be interpreted to mean that the conditions
may fall below the standards provided for by the Convention. For both prisoner-of-
war camps and transit or screening camps, the Convention sets a minimum standard.
The use of ‘similar’ implies that although it is not required that conditions in
permanent transit or screening camps be identical to those in prisoner-of-war camps,
they must not differ in any essential respect from the normal conditions set forth
in section II of the Convention.32
GCIV 76
Protected persons accused of offences shall be detained in the occupied country, and if
convicted they shall serve their sentences therein. They shall, if possible, be separated from
other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep
them in good health, and which will be at least equal to those obtaining in prisons in the
occupied country.
·············
Protected persons who are detained shall have the right to be visited by delegates of the
Protecting Power and of the International Committee of the Red Cross, in accordance with the
provisions of Article 143
commentary：
The humanitarian activities of the International Committee are of particular
importance when those detained have not the benefit of assistance from a Protecting
Power to safeguard their interests and ensure that the provisions of the Convention are
carried out .
The paragraph states that the right to be visited shall be "in accordance with the
provisions of Article 143", an Article which lays down detailed regulations
concerning the right of visit and envisages among other things, the possibility of
visitors being able to converse with those detained without witnesses.
ARTICLE 83
31
32
The Detaining Power shall not set up places of internment in areas particularly
exposed to the dangers of war.
ARTICLE 85
The Detaining Power is bound to take all necessary and possible measures to ensure
that protected persons shall, from the outset of their internment, be accommodated in
buildings or quarters which afford every possible safeguard as regards hygiene and
health, and provide efficient protection against the rigours of the climate and the
effects of the war. In no case shall permanent places of internment be situated in
unhealthy areas or in districts the climate of which is injurious to the internees. In all
cases where the district, in which a protected person is temporarily interned, is in an
unhealthy area or has a climate which is harmful to his health, he shall be removed to
a more suitable place of internment as rapidly as circumstances permit.
The premises shall be fully protected from dampness, adequately heated and lighted,
in particular between dusk and lights out. The sleeping quarters shall be sufficiently
spacious and well ventilated, and the internees shall have suitable bedding and
sufficient blankets, account being taken of the climate, and the age, sex, and state of
health of the internees.
Internees shall have for their use, day and night, sanitary conveniences which
conform to the rules of hygiene and are constantly maintained in a state of cleanliness.
They shall be provided with sufficient water and soap for their daily personal toilet
and for washing their personal laundry; installations and facilities necessary for this
purpose shall be granted to them. Showers or baths shall also be available. The
necessary time shall be set aside for washing and for cleaning.
commentary:
Differencs of pow internment and civilian internment:
However, there are two slight differences characteristic of civilian internment. In the
first place, it is stated that accommodation and sanitary conditions must be
satisfactory from the outset of internment, whereas the provisions relating to prisoners
of war tacitly admit that some time is necessary in certain cases to fulfil the conditions
laid down. This is because the number of internees is in general very much less than
the number of prisoners of war (1). Their number is in any case always known in
advance and it is therefore easy to plan their accommodation at the same time as
deciding to intern them.
In the second place, it should be noted that the bedding and the number of blankets
supplied should take into account the age, sex and state of health of the internees. This
provision has no equivalent in the Prisoners of War Convention, since prisoners are
all by definition fit for service in the forces and it is therefore unnecessary to make the
same distinctions between them (2).
Apart from these two exceptions all the provisions applicable to prisoners of war in
the matter of accommodation and hygiene are reproduced in the Civilians Convention.
As in the case of all provisions dealing with the status of internees, supervision is
ensured through the visits and activities of representatives of the Protecting Power or
delegates of the International Committee of the Red Cross 33
3.Direct participants in hostilities (“unlawful combatants”) ：
33
paras.2-4 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August
1949. Art.85
case：
13. For the reasons detailed above, we did not see that a justification arose for
renewed examination of the procedures of SAJIDIA and WAJIA. We reiterate and
reemphasize that in everything connected with conditions of detention and the
relevant provisions of the Geneva Convention and even of additional international
laws regarding the holding of detainees, this Court determined clearly and
unequivocally that Israel must respect the provisions of international law, and that
every detainee is entitled to conditions of detention appropriate to his human self
respect. This Court did not withhold criticism as to the determination of physical
conditions and personal welfare needed by the detainee, and in this matter, as
aforesaid, there has been considerable improvement, precisely because the detainees
are held in Israel. As we noted, the provisions of the Convention must be interpreted
as bearing on the special conditions of holding of the area in the hands of Israel, and
in consideration of its principled initial point, as laid down in Article 27 of the
Convention, which instructs as follows:
“Protected persons are entitled, in all circumstances, to respect for their persons, their
honour, their family rights, their religious convictions and practices, and their
manners and customs. They shall at all times be humanely treated, and shall be
protected especially against all acts of violence or threats thereof and against insults
and public curiosity...
However, the Parties to the conflict may take such measures of control and security in
regard to protected persons as may be necessary as a result of the war.”
In this the respondents are observing the relevant provisions of the Geneva
Convention regarding conditions of of holding of detainees, In this matter, with
adaptation, the words of Justice Bach in the Sajidia Case are good in that he felt that
the Convention must be observed according to the proper interpretation, and he said:
“It cannot be understood from these words that all the provisions included in the
Convention, and relating to the detention of administrative detainees must be
observed blindly; each provision must be examined according to its importance,
vitality and appropriateness to the special circumstances of the detainees camp that is
the subject of our discussion”.
14. In the circumstances created thought must be given to the practical implication of
erecting new prison facilities in the area in the required scope after withdrawal of IDF
forces from the cities in which were facilities in the past, erection in the course of
which there may be harm to detainees from the viewpoint of conditions of holding
and to the local residents on whose land the facilities will be built. In application of
the provisions of the Geneva Convention they must be implemented in adaptation to
the reality that was not foreseen by the drafters of the Convention; the geographic
proximity of the area to Israel must also be taken into account and the fact that there is
nothing in the holding of detainees in Israel to necessarily deprive them of family
visits or legal aid. There must, therefore, be separation between the obligation to
observe the humanitarian provisions of the Convention and the maintenance of
conditions of detention of detainees and between the argumentation as to the location
of detention; in consideration that the question of location of the detention was
arranged years ago in enactments of the Knesset, and its legality was approved in
verdict of this Court, and in consideration that the conditions of Israel’s holding of the
area and the reality prevailing between Israel and the area, the holding in prison
facilities in Israel does not strike at the essential provisions of international law.34
Labour:
GCIII：
Art49
“The Detaining Power may utilize the labour of prisoners of war who are physically
fit, taking into account their age, sex, lank and physical aptitude, and with a view
particularly to maintaining them in a good state of physical and mental health.
Non-commissioned officers who are prisoners of war shall only be required to do
supervisory work. Those not so required may ask for other suitable work which shall,
so far as possible, be found for them.
If officers or persons of equivalent status ask for suitable work, it shall be found for
them, so far as possible, but they may in no circumstances be compelled to work.35
ICCPR：
“The military manuals and the legislation of many States state that imposing
forced labour on prisoners of war or civilians 36,as well as compelling prisoners of war
or civilians to perform prohibited work, are criminal offences.In several national war
crimes trials, the accused were found guilty of having forced prisoners of war or
civilians to engage in work related to the war.37
34
paras:13-14 SUPREME COURT SITTING AS HIGH COURT OF JUSTICE HCJ 2690/09
35
Geneva Convention (III) on Prisoners of War,1949, Article
36
See, e.g., the military manuals of Ecuador para.1801and United States para.1813 and the legislation of Australia
para.1816–1817, Azerbaijan para.1820, Bosnia and Herzegovina para. 1824), Democratic Republic of the Congo
para.1828, Côte d’Ivoire para.1830, Croatia para.1831), Ethiopia para.1832, Latvia para.1838, Lithuania para 183),
Paraguay para.1848, Slovenia para.850, Uzbekistan para. 1856 and Yugoslavia paras.1857–1858.
37
See, e.g., Canada, Federal Court of Appeal, Rudolph and Minister of Employment and Immigration case (use of
civilians in the production of V2 rockets) (Customary IHL Database Volume V § 1859
https://ihl-databases.icrc.org/customary-ihl/eng/docs/src_vnaca); France, General Tribunal at Rastadt of the
Military Government for the French Zone of Occupation in Germany, Roechling case (prisoners of war working in
the metallurgical industry) (ibid., § 1861); Netherlands, Temporary Court-Martial of Makassar, Koshiro case
(prisoners of war building and filling up ammunition depots) (ibid., § 1863); Netherlands, Special Court of
Cassation, Rohrig and Others case (civilians constructing fortifications) (ibid., § 1864); United Kingdom, Military
Court at Lüneberg, Student case (prisoners of war unloading arms, ammunition and warlike stores from aircraft)
(ibid., § 1866); United States, Military Tribunal at Nuremberg, Krauch (I. G. Farben Trial) case (prisoners of war
working in coal mines) (ibid., § 1870) and Von Leeb (High Command) case (civilians constructing fortifications)
(ibid., § 1872).
In the context of non-international armed conflicts, Additional Protocol II
provides that persons who are deprived of their liberty for reasons related to the armed
conflict “shall, if made to work, have the benefit of working conditions and
safeguards similar to those enjoyed by the local civilian population”.38
The Forced Labour Convention and Convention concerning the Abolition of
Forced Labour, as well as the International Covenant on Civil and Political Rights and
the regional human rights conventions, prohibit “forced or compulsory labour”. The
Forced Labour Convention defines this as “all work or service which is exacted from
any person under the menace of any penalty and for which the said person has not
offered himself voluntarily”. But human rights law provides for exceptions to the
general rule in that certain types of labour would not amount to unlawful forced
labour, for example, labour by prisoners within prison establishments, labour required
for the community to overcome calamity situations or normal civic obligations.39In
addition, contrary to the prohibition of slavery and the slave trade, the prohibition of
forced or compulsory labour may be derogated from, for example, in case of armed
conflict where the above-mentioned specific rules of international humanitarian law
become applicable40.”
commentary：
Art49:
The relationship between the labour provisions of this Convention and the 1930
Forced Labour Convention is also relevant. Could labour imposed on prisoners of war
amount to forced labour? ‘Forced or compulsory labour’ is defined in Article 2(1) of
the Forced Labour Convention as ‘all work or service which is exacted from any
person under the menace of any penalty and for which the said person has not offered
himself voluntarily’. However, for the purposes of that Convention, the term does not
include ‘any work or service exacted in cases of emergency, that is to say, in the event
of war or of a calamity’.The use of the word ‘war’ in that context suggests that the
Forced Labour Convention does not regulate the labour of prisoners of war and that
such work does not amount to forced labour in the sense of that Convention.The ILO
governing body reaffirmed in 1949 that the Forced Labour Convention specifically
excludes from its scope work of a military character carried out by prisoners during
armed conflicts.41
GCIII：ART52
Unless he be a volunteer, no prisoner of war may be employed on labour which is of
an unhealthy or dangerous nature.
No prisoner of war shall be assigned to labour which would be looked upon as
humiliating for a member of the Detaining Power's own forces.
The removal of mines or similar devices shall be considered as dangerous labour.
commentary：
Art52:
With the exception of the express reference to mine clearance in Article 52(3), the
Convention provides no list of nor any criteria for defining unhealthy or dangerous
work. Unhealthy labour can be defined as a type of work which is liable to cause
disease, injury or body ailment. Dangerous work is that which can be qualified as
38
Additional Protocol II to GC, Article 5(1)(e) (adopted by consensus)
39
See International Covenant on Civil and Political Rights, Article 8(3)(b) and (c); European Convention on
Human Rights, Article 4(3); American Convention on Human Rights, Article 6(3)
40
See, e.g., International Covenant on Civil and Political Rights, Articles 4(2) and 8(3) and European Convention
on Human Rights, Articles 4(2) and 15(2)
41
perilous, hazardous or unsafe.The nature of each task and whether it is unhealthy or
dangerous will have to be determined by the Detaining Power on a case-by-case basis,
and generally not for an entire category or type of work.In case of disagreement,
prisoners of war have the right to have recourse to the complaints mechanisms
provided for under Article 78.42
As Article 52 clearly prohibits the Detaining Power from requiring prisoners of war to
undertake unhealthy or dangerous work, unless they volunteer freely for it, it will be
crucial to determine whether the prisoners who come forward are genuine volunteers.
No physical or moral pressure to carry out such work may be put on
them.Considering the vulnerable and often desperate situation of prisoners of war in
the hands of a Detaining Power, caution must be exercised when considering the
authenticity of the prisoner’s consent. It is doubtful whether they are able to take
decisions based on ‘free will’ in such circumstances.In cases before it, the ICTY used
the following criteria to determine whether the work was undertaken voluntarily or
whether the prisoners of war were compelled to undertake it:
a) the substantially uncompensated aspect of the labour performed;
b) the vulnerable position in which the detainees found themselves;
c) the allegations that detainees who were unable or unwilling to work were either
forced to do so or put in solitary confinement; d) claims of longer term consequences
of the labour;
e) the fact and the conditions of detention; and f) the physical consequences of the
work on the health of the internees.
After reviewing the factual evidence, the Tribunal determined on a case-by-case
basis whether a prisoner had expressed a genuine choice in volunteering to perform
unhealthy or dangerous labour. In some instances, it found that the ‘nature of the work
and the circumstances in which it was performed could only lead to the conclusion
that the prisoners had not truly volunteered’. The ICTY found individuals guilty of the
war crime of unlawful labour when the conditions prescribed in Articles 50 or 52 had
been violated.43
cases：
1.Etreal V Ehiopia：
‘Forced or compulsory labour’ is defined in Article 2(1) of the Forced Labour
Convention as ‘all work or service which is exacted from any person under the
menace of any penalty and for which the said person has not offered himself
voluntarily’. However, for the purposes of that Convention, the term does not include
‘any work or service exacted in cases of emergency, that is to say, in the event of war
or of a calamity’.The use of the word ‘war’ in that context suggests that the Forced
Labour Convention does not regulate the labour of prisoners of war and that such
work does not amount to forced labour in the sense of that Convention.The ILO
governing body reaffirmed in 1949 that the Forced Labour Convention specifically
excludes from its scope work of a military character carried out by prisoners during
armed conflicts.44
“However, scarcity of finances and infrastructure cannot excuse a failure to grant the
minimum standard of medical care required by international humanitarian law. The
42
paras .2744 Commentary of 2020 on Geneva Convention (III) on Prisoners of War,1949, Article 52
43
paras .2749-2750 Commentary of 2020 on Geneva Convention (III) on Prisoners of War,1949, Article 52
44
cost of such care is not, in any event, substantial in comparison with the other costs
imposed by the armed conflict.45”
2.Naletilic：
Thirdly, Article 52 of Geneva Convention III prohibits the use of prisoners of war
to perform unhealthy or dangerous work unless the prisoners volunteer to undertake
such work. While this provision expressly only refers to mine-lifting as constituting
dangerous labour, the Commentary provides further guidance by distinguishing three
situations:
(1) work which is not dangerous in itself but which may be dangerous by reason of
the general conditions in which it is carried out: this situation is intended to cover
particularly work done “in the vicinity either of key military objectives ?…g or of the
battlefield”
(2) work which by its very nature is dangerous or unhealthy, and
(3) work which is not in itself dangerous but which may be or may become so if it
is done in inadequate technical conditions.
An essential aspect of this protection afforded to prisoners of war is the responsibility
that rests on the detaining authorities to ensure that the work is performed with
maximum safety.”46
As a result of the foregoing, the Chamber will have to determine on a case by case
basis whether the forms of labour alleged in the Indictment were indeed undertaken
voluntarily or whether the detainees were compelled to do so. To determine whether a
person was not in a position to make a “real choice”to undertake labour in
contravention of the law, the following criteria may be considered, in accordance
with previous jurisprudence:
(a) the substantially uncompensated aspect of the labour performed;
(b) the vulnerable position in which the detainees
found themselves;
(c) the allegations that detainees who were unable or unwilling to work were
either forced to do so or put in solitary confinement;
(d) claims of longer term consequences of the
labour;
(e) the fact and the conditions of detention;696 and
(f) the physical consequences of the work on the health of the internees.47
3.PRLIĆ ：
“b) Labour by Prisoners of War
As for labour by prisoners of war, the Chamber also adopts the findings of the
Naletilić Chamber insofar concerning the general requirements for the application of
Articles 49, 50, and 52 of the Third Geneva Convention. The Naletilić Chamber found
that these provisions protect persons with prisoner of war status.That Chamber
recalled that the Detaining Power may compel prisoners of war – excepting officers
– to work,under certain conditions described in Section III of the Third Geneva
Convention.
Labour by prisoners of war is regulated in detail in Articles 49 to 57 of the
Third Geneva Convention. Broadly speaking, when labour is required of a prisoner of
45
para.125 PARTIAL AWARD Prisoners of War Ethiopia’s Claim 4
46
para.257, ICTY PROSECUTOR v. Mladen NALETILIC, aka “TUTA” And Vinko MARTINOVIC, aka
“ŠTELA”
47
“ŠTELA”
war it must accord with the latter‟s age, sex, rank and physical condition.
The Third Geneva Convention broadly prohibits using prisoners of war in
labour related to combat operations. In this spirit, the list of authorised work
established by Article 50 of that Convention contains three exceptions: work in
metallurgical, machinery and chemical industries; public works; and work in building
operations which have no military character or purpose. According to the
Commentary to the Third Geneva Convention, “[e]verything which is commanded
and regulated by the military authority is of military character, in contrast to what is
commanded and regulated by the civil authorities”.338 The Commentary offers a
more flexible definition of military purpose whereby the ultimate objective of the
activity in question must be determined on a case-by-case basis, even if it is
controlled by civil authorities or civil undertakings.This type of work cannot, in any
event, be made compulsory for prisoners of war
. Moreover, Article 52 of the Third Geneva Convention prohibits compelling a
prisoner of war to engage in unhealthy or dangerous labour unless the prisoner
volunteers for it. The Commentary warns that the fact that the prisoner of war has
volunteered does not in any way rule out the responsibility of the detaining authority,
inasmuch as it falls to the latter to choose the prisoner of war best qualified for the
work from among the volunteers who come forward.
Article 52 of the Third Geneva Convention prohibits the assignment of
prisoners of war to labour which can be considered humiliating for a member of the
Detaining Power‟s own forces.
Finally, like the Naletilić Chamber, the Chamber finds that it must determine
on a case-by-case basis whether the labour alleged in the Indictment was indeed
forced in nature. To do so, the Chamber will use the following criteria: (a) the
substantially uncompensated aspect of the labour performed; (b) the vulnerable
position in which the detainees found themselves; (c) the allegations that detainees
who were unable or unwilling to work were either forced to do so or put in solitary
confinement; (d) the long term consequences of the labour; (e) the fact and the
conditions of detention; and (f) the physical consequences of the work on the health of
the internees. The perpetrator of the crime must have acted with the intent that the
victim perform prohibited labour. This mens rea can be inferred from the
circumstances in which the labour is carried out.
In view of the foregoing, the Chamber finds that the crime of unlawful labour
consists of any intentional act or omission whereby a prisoner of war or a civilian not
taking part in hostilities at the time of the act or omission is compelled to perform
labour prohibited under the provisions of Articles 49, 50 and 52 of the Third Geneva
Convention and Articles 40, 51 and 95 of the Fourth Geneva Convention.
In its Final Brief, the Petković Defence argues that international law is not
entirely clear regarding the circumstances under which civilians and prisoners of war
may be compelled to perform forced labour. More specifically, relying on the
jurisprudence of the Nuremberg Tribunal and the Commentary to Article 50 of the
Third Geneva Convention, the Petković Defence argues that the sort of work relevant
to the Indictment, such as work on defensive structures, could be considered to fall
within the category of work permissible under applicable law. The Petković
Defence concludes from this that the uncertainties and ambiguities of the present state
of the law concerning this matter must benefit the Accused and that clarifying this
would be likely to prejudice the Accused.The Chamber cannot subscribe to the
interpretation of the Petković Defence. Quite to the contrary, the Chamber considers
that forced labour by civilians is clearly regulated in Article 95 of the Fourth Geneva
Convention as described above, which rules out the use of internees for the needs of
military operations. As concerns labour by prisoners of war, the Chamber recalls
that Article 50 of the Third Geneva Convention expressly prohibits “building
operations which have no military character or purpose”. The Commentary to Article
50 of the Third Geneva Convention defines the “military character” of work as
including “[e]verything which is commanded and regulated by the military authority
[...], in contrast to what is commanded and regulated by the civil authorities.”
Moreover, this same Commentary establishes that “military purpose” is any activity
whose ultimate purpose is military in nature.The Chamber concludes from this that
the use of civilian detainees or prisoners of war for work on the defensive structures
of the detaining power is clearly included among the categories of military labour
prohibited under applicable law.48
The Chamber is satisfied that the opportunity to volunteer was never given to
the prisoners who performed the forms of labour described above and that they
were forced to do so.
First, it appears clearly that to the exception of those prisoners who enjoy a
privileged treatment, the Heliodrom detainees did not come forward, but were
selected by the member of the unit who came to the Heliodrom to pick them up.In the
absence of direct evidence that the prisoners were forced to work, the Chamber is
satisfied that the circumstances under which the detainees were put and the nature of
the labour interfered with their capacity to make a real choice. Prisoners were
under constant guard and regularly mistreated while working for the Vinko [krobo
ATG.The atmosphere prevailing in and around the confrontation line was one of fear
and threats.736 The nature of the work itself is also indicative of the fact that the
prisoners did not have a real choice.49
2.Nonparticipants in hostilities (“innocent civilians”)：
GCIV：ART. 40
Protected persons may be compelled to work only to the same extent as nationals of
the Party to the conflict in whose territory they are.
If protected persons are of enemy nationality, they may only be compelled to do
work which is normally necessary to ensure the feeding, sheltering, clothing, transport
and health of human beings and which is not directly related to the conduct of military
operations.
GCIV：Art.95:
The Detaining Power shall not employ internees as workers, unless they so
desire. Employment which, if undertaken under compulsion by a protected person not
in internment, would involve a breach of Articles 40 or 51 of the present Convention,
and employment on work which is of a degrading or humiliating character are in any
case prohibited.
After a working period of six weeks, internees shall be free to give up work at any
moment, subject to eight days' notice.
These provisions constitute no obstacle to the right of the Detaining Power to
employ interned doctors, dentists and other medical personnel in their professional
48
paras.157-164,ICTY,Case No.:IT-04-74-T
49
para。270 ICTY PROSECUTOR v. Mladen NALETILIC, aka “TUTA” And Vinko MARTINOVIC, aka
“ŠTELA”
capacity on behalf of their fellow internees, or to employ internees for administrative
and maintenance work in places of internment and to detail such persons for work in
the kitchens or for other domestic tasks, or to require such persons to undertake duties
connected with the protection of internees against aerial bombardment or other war
risks. No internee may, however, be required to perform tasks for which he is, in the
opinion of a medical officer, physically unsuited.
commentaries：
PARAGRAPH 1 -- THE PRINCIPLE: VOLUNTARY WORK
The first paragraph sets forth a rule which marks an essential difference between the
working conditions of internees and those of prisoners of war.
Prisoners, with the exception of officers, are liable to compulsory work, whereas the
Detaining Power may only give internees work of their own free will . That rule is
based on the idea of the work of the internees being arranged in their own interest to
keep them as far as possible in good physical and mental condition and to provide
them with some additional financial resources with which to supplement the
arrangements the Detaining Power makes for their maintenance. The preliminary
discussions on the Convention, in particular those of the Government Experts of 1947,
bring out this intention quite clearly. It was based on experience gained during the
Second World War, during which the International Committee's delegates had even,
when visiting internee camps, recommended that the internees should be extricated
from an idleness which was, in the long run, dangerous to their physical and mental
health. When certain internees had shown some scruples about accepting work, for
fear of helping the war effort of the Detaining Power50
case：
unlawful labour?
“Unlawful Labour
Unlawful labour is alleged in the Indictment as a violation of the laws or
customs of war under Article 3 of the Statute, as recognised by Articles 40, 51, and 95
of the Fourth Geneva Convention and by Articles 49, 50 and 52 of the Third Geneva
Convention.
The Chamber adopts the reasoning of the Trial Chamber in the Naletilić Case,
deeming the violations of the aforementioned provisions to constitute breaches of the
Geneva Conventions outside of those termed grave breaches and that, for this reason,
they constitute manifest violations of international humanitarian customary law,
causing their perpetrators to incur individual criminal responsibility.As indicated
by the Naletilić Chamber, the Chamber must verify case by case whether the breaches
alleged are sufficiently grave to fall within the scope of Article 3 of the Statute.
As for the unlawful labour of civilians, the Chamber also adopts the position
of the Naletilić Chamber, holding that the application of Article 51 of the Fourth
Geneva Convention is restricted to protected persons who find themselves in occupied
territory.The Chamber recalls, however, that Article 3 of the Statute applies not
only to protected persons, but to any person not participating directly in hostilities at
the time the alleged crime is committed.Therefore, the Chamber holds that the
application of the law of occupation established in Article 51 of the Fourth Geneva
Convention includes any person not taking part in hostilities. Furthermore, the
Chamber adopts the findings of the Naletilić Chamber, holding that occupation does
50
para.414 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August
1949. Commentary of 1958
not require an occupying power to wield actual authority over a territory but that a
state of occupation exists when civilians have fallen “into the hands of the occupying
power”. Therefore, it is not required to establish the existence of a state of
occupation within the meaning of Article 42 of the Hague Regulations, inasmuch as
unlawful labour by civilians, within the meaning of Article 51 of the Fourth Geneva
Convention, is prohibited the moment “they fall into the hands of an occupying
power, regardless of the phase of hostilities”.”51
BLAŠKIĆ Tihomir （also about unlawful labor)：
The Appeals Chamber has noted that the use of forced labour is not always unlawful.
Nevertheless, the treatment of non-combatant detainees may be considered cruel
where, together with the other requisite elements, that treatment causes serious mental
or physical suffering or injury or constitutes a serious attack on human dignity. The
Appeals Chamber notes that Geneva Conventions III and IV require that when non-
combatants are used for forced labour, their labour may not be connected with war
operations or have a military character or purpose. The Appeals Chamber finds that
the use of persons taking no active part in hostilities to prepare military fortifications
for use in operations and against the forces with whom those persons identify or
sympathise is a serious attack on human dignity and causes serious mental (and
depending on the circumstances physical) suffering or injury. Any order to compel
protected persons to dig trenches or to prepare other forms of military installations, in
particular when such persons are ordered to do so against their own forces in an
armed conflict, constitutes cruel treatment. The Appeals Chamber accordingly finds
that a reasonable trier of fact could have come to the conclusion that the Appellant has
violated the laws or customs of war under Article 3 of the Statute, and common
Article 3(1)(a) of the Geneva Conventions, and is guilty under Count 16 for ordering
the use of detainees to dig trenches.52
exception：“innocent civilians ”in occupied territory
GCIV Art 51:

“Enlistment. Labour
The Occupying Power may not compel protected persons to serve in its armed
or auxiliary forces. No pressure or propaganda which aims at securing voluntary
enlistment is permitted.
The Occupying Power may not compel protected persons to work unless they
are over eighteen years of age, and then only on work which is necessary either
for the needs of the army of occupation, or for the public utility services, or for
the feeding, sheltering, clothing, transportation or health of the population of the
occupied country. Protected persons may not be compelled to undertake any
work which would involve them in the obligation of taking part in military
operations. The Occupying Power may not compel protected persons to employ
forcible means to ensure the security of the installations where they are
performing compulsory labour.
The work shall be carried out only in the occupied territory where the persons
whose services have been requisitioned are. Every such person shall, so far as
51
paras.151-153,ICTY,Case No.: IT-04-74-T
52
BLAŠKIĆ Tihomir (IT-95-14-A)
possible, be kept in his usual place of employment. Workers shall be paid a fair
wage and the work shall be proportionate to their physical and intellectual
capacities. The legislation in force in the occupied country concerning working
conditions, and safeguards as regards, in particular, such matters as wages,
hours of work, equipment, preliminary training and compensation for
occupational accidents and diseases, shall be applicable to the protected persons
assigned to the work referred to in this Article.”
commentaries：
' Work necessary to satisfy the needs of the population '
A second group of services is concerned with the needs of the population; the right to
requisition labour for work connected with these services belongs to the Occupying
Power as the authority responsible for maintaining order and the living conditions of
the population.
It will be remembered that work necessary for the public utility services was the only
type of work mentioned in the corresponding Article in the draft submitted by the
International Committee. The XVIIth International Red Cross Conference felt that the
expression "public utility services" should be defined and therefore added the words
"such as water, gas and electricity services, transport, health and similar services" .
Although the Diplomatic Conference did not keep this list of various examples, it is
nevertheless clear that it had such services in mind and the words "public utility
services" should be understood in that sense.
Postal, telegraphic and telephone services are generally considered to be part of the
"public utility services" and should therefore be added to the list of examples given
above.
If order and normal living conditions are to be maintained in occupied territory it is
essential for the public utility services to keep working properly; any failure to do so
is bound to have far-reaching repercussions on the whole population. It is primarily to
protect the interests of the inhabitants, therefore, that the occupying authorities can
and must exercise their right of requisition should the need arise. Such action would
moreover be in accordance with Article 43 of the Hague Regulations which requires
the occupant to take "all the measures in his power to restore, and ensure, as far as
possible, public order and safety". The same end is served by certain clauses in
Article 54 of the Convention, concerning judges and public officials, which will be
commented upon further on.
After referring to the public utility services, the Diplomatic Conference added a list of
various forms of work which the Occupying Power might also compel protected
persons to do -- namely work which is necessary for the feeding, sheltering, clothing,
transport or health of the population of the occupied country . It will be remembered
that those were the five classes of work which a belligerent, under the terms of Article
40, may compel protected persons of enemy nationality who are in its territory to do.
··········
Since work falling into the categories specified in this paragraph are of vital
importance for the whole economy of the occupied countries and closely affect the
interests of each individual person, they will normally continue to be carried out and
the occupying authorities are unlikely to have to intervene except on rare occasions.
The Occupying Power may not in any circumstances or in any manner whatsoever
employ protected persons to serve its own national economy, and the types of work
mentioned may only be made compulsory when it is necessary to do so, as the
Convention emphasizes, to meet the needs "of the population of the occupied
country".
It may be mentioned, in conclusion, that the right to requisition the services of
protected persons may be regarded as a counterpart to the extensive obligations which
the Occupying Power assumes towards the population of the occupied country,
particularly in connection with the provision of food supplies, public health and
sanitation; its obligations under these headings are laid down in Articles 55, 56, 59and
following of the Convention.
Working conditions
GCIII ART.51:
” Prisoners of war must be granted suitable working conditions, especially as
regards accommodation, food, clothing and equipment; such conditions shall not be
inferior to those enjoyed by nationals of the Detaining Power employed in similar
work; account shall also be taken of climatic conditions.
The Detaining Power, in utilizing the labour of prisoners of war, shall ensure that in
areas in which prisoners are employed, the national legislation concerning the
protection of labour, and, more particularly, the regulations for the safety of
workers, are duly applied.
Prisoners of war shall receive training and be provided with the means of protection
suitable to the work they will have to do and similar to those accorded to the
nationals of the Detaining Power. Subject to the provisions of Article 52, prisoners
may be submitted to the normal risks run by these civilian workers.
Conditions of labour shall in no case be rendered more arduous by disciplinary
measures.”
commentary:
This choice makes it clear that the national standard is the benchmark, which has
the important advantage of being a single standard applicable to all prisoners of war
engaged in the same task, irrespective of the Power on which they depend. Complying
with the standard normally granted to civilian workers may also mean greater
protection for prisoners of war than that provided for in the 1929 Convention.
Furthermore, the Detaining Power cannot claim to be unable to grant the requisite
conditions to prisoners of war, as these are granted by law to civilian workers. If they
are unable to guarantee the appropriate conditions, the Detaining Power must not
employ prisoners for those particular tasks.53
2.Nonparticipants in hostilities (“innocent civilians”)：
Transfer ：
concept：
transfer：
53
The term refers to both the transfer of a person or group of persons from the authority
of the Detaining Power to another power, and to transfer of a person or group of
persons from one physical location to another. 54
forcible transfer：
Elements
1. The perpetrator deported or forcibly transferred, without grounds permitted under

international law, one or more persons to another State or location, by expulsion or other
coercive acts.
2. Such person or persons were lawfully present in the area from which they were so deported
or transferred.
3. The perpetrator was aware of the factual circumstances that established the lawfulness of
such presence.
4. The conduct was committed as part of a widespread or systematic attack directed against a
civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a
widespread or systematic attack directed against a civilian population.
The term “forcibly” is not restricted to physical force, but may include threat of force
or coercion, such as that caused by fear of violence, duress, detention, psychological
oppression or abuse of power against such person or persons or another person, or by
taking advantage of a coercive environment.
“Deported or forcibly transferred” is interchangeable with “forcibly displaced”.55
GCIII Art 19：

Prisoners of war shall be evacuated, as soon as possible after their capture, to camps
situated in an area far enough from the combat zone for them to be out of danger.
Only those prisoners of war who, owing to wounds or sickness, would run greater
risks by being evacuated than by remaining where they are, may be temporarily kept
back in a danger zone.
Prisoners of war shall not be unnecessarily exposed to danger while awaiting
evacuation from a fighting zone.56
GCIII Art 23:
No prisoner of war may at any time be sent to, or detained in areas where he may be
exposed to the fire of the combat zone, nor may his presence be used to render certain
points or areas immune from military operations.
Prisoners of war shall have shelters against air bombardment and other hazards of
war, to the same extent as the local civilian population. With the exception of those
engaged in the protection of their quarters against the aforesaid hazards, they may
enter such shelters as soon as possible after the giving of the alarm. Any other
protective measure taken in favour of the population shall also apply to them.
54
see DROEGE Cordula, “Transfer of Detainees: Legal Framework, Non-Refoulement and Contemporary
Challenges”, in IRRC, Vol. 90, No. 871, September 2008, pp. 669-701.
55
see Elements of Article 7 (1) (d) Crime against humanity of deportation or forcible transfer of population
56
Detaining Powers shall give the Powers concerned, through the intermediary of the
Protecting Powers, all useful information regarding the geographical location of
prisoner of war camps.
Whenever military considerations permit, prisoner of war camps shall be indicated in
the day-time by the letters PW or PG, placed so as to be clearly visible from the air.
The Powers concerned may, however, agree upon any other system of marking. Only
prisoner of war camps shall be marked as such.
commentaries of Art 23:
The first part of Article 23(1) prohibits Detaining Powers from sending prisoners
of war to, or detaining them in, areas where they may be exposed to fire from the
combat zone. This provision should be read in conjunction with Article 19(1), which
requires that as soon as possible after prisoners of war fall into the hands of the
enemy, they must be evacuated to camps that are far enough removed from the
combat zone for the prisoners to be out of danger.The ‘combat zone’ refers to any
area where hostilities are taking place.
The phrase ‘at any time’ makes this provision absolute. Article 23(1) applies
throughout the entire period that prisoners of war are in the hands of the Detaining
Power. This means, for example, that regardless of whether a truce or armistice has
been concluded, prisoners of war must not be kept in areas where hostilities are under
way. Directly after capture, prisoners of war will, of course, still find themselves in
the combat zone. This is why Article 19 is not as categorical as Article 23 and
requires evacuation to happen only ‘as soon as possible’. If instead of evacuating a
prisoner to a camp, the Detaining Power decides to intern the prisoner in the
combat zone, it would violate both Article 19 and Article 23.57
GCIII 46:
The Detaining Power, when deciding upon the transfer of prisoners of war, shall take
into account the interests of the prisoners themselves, more especially so as not to
increase the difficulty of their repatriation.
The transfer of prisoners of war shall always be effected humanely and in conditions
not less favourable than those under which the forces of the Detaining Power are
transferred. Account shall always be taken of the climatic conditions to which the
prisoners of war are accustomed and the conditions of transfer shall in no case be
prejudicial to their health.
The Detaining Power shall supply prisoners of war during transfer with sufficient
food and drinking water to keep them in good health, likewise with the necessary
clothing, shelter and medical attention. The Detaining Power shall take adequate
precautions especially in case of transport by sea or by air, to ensure their safety
during transfer, and shall draw up a complete list of all transferred prisoners before
their departure.58
commentaries：
Article 46(1) explicitly requires the Detaining Power to consider how a transfer might
affect later repatriation efforts. For instance, the Detaining Power should bear in mind
the Convention’s cost-sharing arrangement regarding repatriation expenses.For
example, the fact that transfers would complicate or raise the cost of repatriation
should be taken into account.It should be emphasized, however, that repatriation
concerns do not override the Convention’s obligations regarding the safeguarding of
the health and safety of prisoners of war. 59
57
paras 2021,2022 Commentary of 2020 on Geneva Convention (III) on Prisoners of War,1949, Article 23
58
59
paras 2616 Commentary of 2020 on Geneva Convention (III) on Prisoners of War,1949, Article 46
GCIII Art.46
The Detaining Power, when deciding upon the transfer of prisoners of war, shall
take into account the interests of the prisoners themselves, more especially so as not
to increase the difficulty of their repatriation.
The transfer of prisoners of war shall always be effected humanely and in conditions
not less favourable than those under which the forces of the Detaining Power are
transferred. Account shall always be taken of the climatic conditions to which the
prisoners of war are accustomed and the conditions of transfer shall in no case be
prejudicial to their health.
The Detaining Power shall supply prisoners of war during transfer with sufficient
food and drinking water to keep them in good health, likewise with the necessary
clothing, shelter and medical attention. The Detaining Power shall take adequate
precautions especially in case of transport by sea or by air, to ensure their safety
during transfer, and shall draw up a complete list of all transferred prisoners before
their departure.60
case:
1. Prisoners of War Ethiopia
“ Evacuation Conditions
Timing aside, the Ethiopian POW declarants described extremely onerous conditions
of evacuation. The POWs were forced to walk from the front for hours or days over
rough terrain, often in pain from their own wounds, often carrying wounded comrades
and Eritrean supplies, often in harsh weather, and often with little or no food and
water. Eritrea offered rebuttal evidence that its soldiers faced nearly the same
unavoidably difficult conditions, particularly given the lack of paved roads in Eritrea.
Subject to the holding above concerning unlawful physical abuse during evacuation
and with one exception, the Commission finds that Eritrean troops satisfied the legal
requirements for evacuations from the battlefield under the harsh geographic, military
and logistical circumstances. The exception is the Eritrean practice of seizing the
footwear of all Ethiopian POWs, testified to by many declarants. Although the
harshness of the terrain and weather on the marches to the camps may have been out
of Eritrea’s control, to force the POWs to walk barefoot in such conditions
unnecessarily compounded their misery. The Commission finds Eritrea liable for
inhumane treatment during evacuations from the battlefield as a result of its forcing
Ethiopian POWs to go without footwear during evacuation marches.”61
GCIII Art 47
Sick or wounded prisoners of war shall not be transferred as long as their recovery
may be endangered by the journey, unless their safety imperatively demands it.
If the combat zone draws closer to a camp, the prisoners of war in the said camp shall
not be transferred unless their transfer can be carried out in adequate conditions of
safety, or if they are exposed to greater risks by remaining on the spot than by being
transferred.62
commentary：
Article 47(2) provides, first of all, that when hostilities approach a camp, the
Detaining Power must transfer prisoners of war interned there to a new location,
provided that the transfer can be carried out in ‘adequate conditions of safety’. Such
60
Geneva Convention (III) on Prisoners of War 1949.Article 46
61
paras73,74 PARTIAL AWARD Prisoners of War Ethiopia’s Claim 4
62
conditions must be understood by reference to Article 46 and to the Convention’s
general provisions that also apply to prisoner welfare during transit between camps。
GCIV ART. 45.

Protected persons shall not be transferred to a Power which is not a party to the
Convention. This provision shall in no way constitute an obstacle to the
repatriation of protected persons, or to their return to their country of residence after
the cessation of hostilities.
Protected persons may be transferred by the Detaining Power only to a Power
which is a party to the present Convention and after the Detaining Power has satisfied
itself of the willingness and ability of such transferee Power to apply the present
Convention. If protected persons are transferred under such circumstances,
responsibility for the application of the present Convention rests on the Power
accepting them, while they are in its custody.
Nevertheless, if that Power falls to carry out the provisions of the present Convention
in any important respect, the Power by which the protected persons were transferred
shall, upon being so notified by the Protecting Power, take effective measures to
correct the situation or shall request the return of the protected persons. Such
request must be complied with.
In no circumstances shall a protected person be transferred to a country where he or
she may have reason to fear persecution for his or her political opinions or religious
beliefs.
The provisions of this Article do not constitute an obstacle to the extradition, in
pursuance of extradition treaties concluded before the outbreak of hostilities, of
protected persons accused of offences against ordinary criminal law.
ICC Prosecutor v. Al Bashir
The underlying acts of genocide by inflicting bodily or mental harm, [...] are identical
to the underlying acts of the crimes against humanity included in the Prosecution's
Application [...] (forcible transfer of population, torture civilians, and rape of
civilians). The legal characterisation of such acts as crimes against humanity or
genocide depends on the following factors: (i) their specific contextual elements; (ii)
the requirement that the victims belonged to a targeted group (in the case of
genocide); and (iii) the different mens rea that each of them require. (para. 27).
- The Chamber is therefore of the view that, [...] in its determination of whether there
are reasonable grounds to believe that the present underlying acts of genocide were
committed, the Chamber may rely on its findings made with respect to the material
elements of the crimes against humanity of forcible transfer of population, torture and
rape of civilian persons, as long as there are reasonable grounds to believe that such
acts were committed against members of the targeted group. (para. 28). 63
63
see ICC case,paras 27-28, Pre-Trial Chamber I | 12 July 2010 | ICC-02/05-01/09-94 | Prosecutor v. Al Bashir
（Transfer of internees)
GCIV ARTICLE 127：
The transfer of internees shall always be effected humanely. As a general rule, it shall
be carried out by rail or other means of transport, and under conditions at least equal
to those obtaining for the forces of the Detaining Power in their changes of station. If,
as an exceptional measure, such removals have to be effected on foot, they may not
take place unless the internees are in a fit state of health, and may not in any case
expose them to excessive fatigue.
The Detaining Power shall supply internees during transfer with drinking water and
food sufficient in quantity, quality and variety to maintain them in good health, and
also with the necessary clothing, adequate shelter and the necessary medical attention.
The Detaining Power shall take all suitable precautions to ensure their safety during
transfer, and shall establish before their departure a complete list of all internees
transferred.
Sick, wounded or infirm internees and maternity cases shall not be transferred if the
journey would be seriously detrimental to them, unless their safety imperatively so
demands.
If the combat zone draws close to a place of internment, the internees in the said place
shall not be transferred unless their removal can be carried out in adequate conditions
of safety, or unless they are exposed to greater risks by remaining on the spot than by
being transferred.
When making decisions regarding the transfer of internees, the Detaining Power shall
take their interests into account and, in particular, shall not do anything to increase the
difficulties of repatriating them or returning them to their own homes.
ARTICLE 128
In the event of transfer, internees shall be officially advised of their departure and of
their new postal address. Such notification shall be given in time for them to pack
their luggage and inform their next of kin.
They shall be allowed to take with them their personal effects, and the correspondence
and parcels which have arrived for them. The weight of such baggage may be limited
if the conditions of transfer so require, but in no case to less than twenty-five
kilograms per internee.
Mail and parcels addressed to their former place of internment shall be forwarded to
them without delay.
The commandant of the place of internment shall take, in agreement with the Internee
Committee, any measures needed to ensure the transport of the internees' community
property and of the luggage the internees are unable to take with them in consequence
of restrictions imposed by virtue of the second paragraph.
case：
Art 8 (2) (a) (vii) · Unlawful deportation or transfer or unlawful confinement
Unlawful deportation or forcible transfer
1. Results from the sources
(1) The unlawfully deported or forcibly transferred a person from the territory where
the person was present, to a place outside that territory.
(2) The perpetrator acted wilfully and knowingly.
2. Commentary
a) Treaty reference of the war crime
The terms "unlawful deportation or transfer or unlawful confinement" have been
incorporated directly from Art. 147 of GC IV.
b) Legal basis
Remarks concerning the material elements
Until now, there are no findings on the elements of this offence by the ad hoc
Tribunals.
However, the ICTY Prosecution indicated in the case against Kovacevic the material
element of this crime as listed above under (1).
The question of deportation and forcible transfer is dealt with in Arts. 45 and 49 GC
IV. The conditions set forth in these provisions can be an indication for the lawfulness
of the perpetrator's act.110
A number of decisions from post Second World War trials have elaborated on the
lawfulness of deportations and can be useful in clarifying the elements of this crime:
In the A. Krupp Case the U.S. Military Tribunal adopted the following statement of
Judge ：
Phillips in his concurring opinion in the Milch Trial2, which was based on the
interpretation of Control Council Law No. 10.
' '[Deportation of civilians from one nation to another during times of -war becomes
a crime [i]f the transfer is carried out -without a legal title, as in the case where
people are deported from a country occupied by an invader 'while the occupied
enemy still has an army in the field and is still resisting [...] [I] t is manifestly clear
that the use of labour from occupied territories outside of the area of occupation is
forbidden by the Hague Regulations.
The second condition under -which deportation becomes a crime occurs when the
purpose of the displacement is illegal, such as deportations for the purpose of
compelling the deportees to manufacture weapons for the use against their homeland
or to be assimilated in the working economy of the occupying country.
The third condition under which deportations becomes illegal occurs whenever
generally recognized standards of decency and humanity are disregarded. "m
The three conditions emphasized above may help in interpreting this war crime. In
this context,
the following findings of the U.S. Military Tribunal in the Von Leeb and Others Case
provides additional guidance with respect to an unlawful purpose:
"There is no international law that permits the deportation or the use of civilians
against their will for other than on reasonable requisitions for the needs of the army,
either within the area of the army or after deportation to rear areas or to the
homeland of the occupying power. "
Ιn sum, one may conclude, for there to be a war crime it has to be determined that:
(1) the deportation has been carried out unlawfully in violation of international
conventions;
or
(2) generally recognised standards of decency and humanity are disregarded.
The cited provisions of the GC can be an indication in this respect.
Remarks concerning the mental elements：
With respect to the mental element, in several post Second World War Trials, the
accused were found guilty on the basis that they committed the offences "wilfully and
knowingly in violation of international conventions".
The ICTY Prosecution stated that:
"as part of the mens rea requirement, the accused or a subordinate must have been
' aware of, or wilfully blind to, the facts that -would render the deportation or transfer
unlawful.It seems that there are no additional requirements for the mental dement
besides those mentioned in Art. 30 of the ICC Statute. 64
CIHL:
Rule 129.The Act of Displacement
A. Parties to an international armed conflict may not deport or forcibly transfer the
civilian population of an occupied territory, in whole or in part, unless the security of
the civilians involved or imperative military reasons so demand.
B. Parties to a non-international armed conflict may not order the displacement of the
civilian population, in whole or in part, for reasons related to the conflict, unless the
security of the civilians involved or imperative military reasons so demand.65
Roman Statute:
Article 7
Crimes against humanity
For the purpose of this Statute, “crime against humanity” means any of the following
acts when committed as part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack:
......
(d)
Deportation or forcible transfer of population;
Elements
1. The perpetrator deported or forcibly[12] transferred[13], without grounds permitted
under international law, one or more persons to another State or location, by
expulsion or other coercive acts.
2. Such person or persons were lawfully present in the area from which they were so
deported or transferred.
3. The perpetrator was aware of the factual circumstances that established the
lawfulness of such presence.
4. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be
part of a widespread or systematic attack directed against a civilian population.
case：
ICC：Prosecutor v. Ntaganda
h) Forcible transfer of population as a crime against humanity […] (p. 470).
- (1) Applicable law (p. 470).
- The crime against humanity of forcible transfer of population is laid down in Article
7(1)(d) of the Statute. (para. 1045).
- The legal elements of this crime against humanity are:
64
see p.52-54 Request from the Governments of Belgium, Costa Rica, Finland, Hungary, South Africa and
Switzerland regarding the text prepared by the International Committee of Red Cross on article 8, paragraph 2(a),
of Rome Statute
65
see para5 Rule 129. The Act of Displacement,Customary IHL
1. The perpetrator deported or forcibly transferred, without grounds
permitted under international law, one or more persons to another State
or location, by expulsion or other coercive acts.
2. Such person or persons were lawfully present in the area from which
they were so deported or transferred.
3. The perpetrator was aware of the factual circumstances that
established the lawfulness of such presence.
4. The conduct was committed as part of a widespread or systematic
attack directed against a civilian population.
5. The perpetrator knew that the conduct was part of or intended the
conduct to be part of a widespread or systematic attack directed against
a civilian population.
6. The perpetrator’s conduct was deliberate and the perpetrator: (i)
meant to cause the consequence; or (ii) was aware that it would occur
in the ordinary course of events. (para. 1046).
- Different types of conduct on the part of the perpetrator ‘can amount to “expulsion
or other coercive acts”, so as to force the victim to leave the area where he or she is
lawfully present’. It therefore must be demonstrated that one or more acts performed
by the perpetrator had the effect of forcibly displacing the victim. (para. 1047).
- iv) By way of expulsion or other coercive acts (p. 473).
- Although incidental displacement as a result of an entirely lawful attack, or

collateral consequences of a lawful attack, would not amount to forcible transfer or
displacement, [...] in order to establish the forced character of displacement, it need
not be established that ‘unlawful targeting’ took place and that the displaced
population formed the ‘object of [an] unlawful attack designed to coerce [its]
departure. Rather, in line with the Elements of Crimes, as well as existing
jurisprudence on the matter, it must be demonstrated that there was a genuine lack
of choice on the part of the individuals transferred. Such a lack of choice may
result from other factors than intentional firing at civilians or the civilian population,
and the ‘targeting’ of the civilian population may be done in other ways. While
individuals may agree, or even request, to be removed from an area, ‘consent must be
real in the sense that it is given voluntarily and as a result of the individual’s free
will’. Therefore, when assessing whether the persons who were transferred had a
genuine choice to remain or leave and thus whether the resultant displacement
was unlawful, the Chamber will take into account the prevailing situation and
atmosphere, as well as all other relevant circumstances, including in particular the
victims’ vulnerability. (para. 1056).
(v) From the area in which they are lawfully present (p. 478).
- The prohibition against forcible transfer is intended to protect the right of

individuals to remain in their homes or communities unhindered. The requirement of
‘lawful presence’ does not mean that the victim must have had legal residence in
the area. Indeed, this protection extends to individuals who, for whatever reason, have
come to live in a community, including internally displaced persons who have
established temporary homes after being uprooted from their original communities.
(para. 1069).66
exception：“innocent civilians ”in occupied territory
GCIV Art 49:

Individual or mass forcible transfers, as well as deportations of protected persons
from occupied territory to the territory of the Occupying Power or to that of any other
country, occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of a
given area if the security of the population or imperative military reasons so demand.
Such evacuations may not involve the displacement of protected persons outside the
bounds of the occupied territory except when for material reasons it is impossible to
avoid such displacement. Persons thus evacuated shall be transferred back to their
homes as soon as hostilities in the area in question have ceased.
The Occupying Power undertaking such transfers or evacuations shall ensure, to the
greatest practicable extent, that proper accommodation is provided to receive the
protected persons, that the removals are effected in satisfactory conditions of hygiene,
health, safety and nutrition, and that members of the same family are not separated.
The Protecting Power shall be informed of any transfers and evacuations as soon as
they have taken place.
The Occupying Power shall not detain protected persons in an area particularly
exposed to the dangers of war unless the security of the population or imperative
military reasons so demand.
The Occupying Power shall not deport or transfer parts of its own civilian
population into the territory it occupies.
commentary:
PARAGRAPH 1. -- FORCIBLE TRANSFERS AND DEPORTATIONS
The first of the six paragraphs in Article 49 is by far the most important, in that it
prohibits the forcible transfer or deportation from occupied territory of protected
persons.
There is doubtless no need to give an account here of the painful recollections called
forth by the "deportations" of the Second World War, for they are still present in
everyone's memory. It will suffice to mention that millions of human beings were torn
from their homes, separated from their families and deported from their country,
usually under inhumane conditions. These mass transfers took place for the greatest
possible variety of reasons, mainly as a consequence of the formation of a forced
labour service. The thought of the physical and mental suffering endured by these
"displaced [p.279] persons", among whom there were a great many women, children,
old people and sick, can only lead to thankfulness for the prohibition embodied in this
paragraph, which is intended to forbid such hateful practices for all time.
The authors of the Convention voted unanimously in favour of this prohibition, but
there was some discussion on the wording. The draft submitted by the International
Committee of the Red Cross reads: "Deportations or transfers of protected persons out
of occupied territory are prohibited..." (3); the Diplomatic Conference preferred not to
place an absolute prohibition on transfers of all kinds, as some might up to a certain
point have the consent of those being transferred. The Conference had particularly in
66
see ICC case,Prosecutor v. Ntaganda,paras1045-1047; 1056; 1069
mind the case of protected persons belonging to ethnic or political minorities who
might have suffered discrimination or persecution on that account and might therefore
wish to leave the country. In order to make due allowances for that legitimate desire
the Conference decided to authorize voluntary transfers by implication, and only to
prohibit "forcible" transfers (4).
The prohibition is absolute and allows of no exceptions, apart from those stipulated in
paragraph 2. It is, moreover, strengthened by other Articles in the cases in which its
observance appeared to be least certain: in this connection mention may be made of
Article 51, paragraph 2, dealing with compulsory labour, Article 76, paragraph 1 ,
concerning the treatment of protected persons accused of offences or serving
sentences and also under certain circumstances Article 70, paragraph 2 , which deals
with refugees.
The Hague Regulations do not refer to the question of deportation; this was probably
because the practice of deporting persons was regarded at the beginning of this
century as having fallen into abeyance. The events of the last few years have,
however, made it necessary to make more detailed provisions on this point which may
be regarded to-day as having been embodied in international law (5). Consequently,
[p.280] "unlawful deportation or transfer" was introduced among the grave breaches,
defined in Article 147 of the Convention as calling for the most severe penal
sanctions.67
case：
Nalitilic：
Article 147 of Geneva Convention IV determines that unlawful deportation and
transfer is considered to be a “grave breach”. The Commentary to Geneva Convention
IV with regard to Article 147 of Geneva Convention IV refers to breaches of the
provisions of Articles 45 and 49 of Geneva Convention IV. The relevant article in the
present case is Article 49 of Geneva Convention IV which provides, in part, that
“Individual or mass forcible transfers, as well as deportations of protected persons
from occupied territory to the territory of the Occupying Power or
to that of any other country, occupied or not, are prohibited, regardless of their
motive.”
Article 49 of Geneva Convention IV is among the articles found under the
chapter concerned with occupied territories. As held above these articles become
applicable with regard to individuals as soon as a person falls into the hands of the
occupying power.
Article 49 of Geneva Convention IV prohibits transfers from occupied territory
and within occupied territory. Geneva Convention IV does not prohibit evacuation.68
API Art.85 （INAC）
4. In addition to the grave breaches defined in the preceding paragraphs and in the
Conventions, the following shall be regarded as grave breaches of this Protocol, when
committed wilfully and in violation of the Conventions or the Protocol:
(a) the transfer by the Occupying Power of parts of its own civilian population into the territory
it occupies, or the deportation or transfer of all or parts of the population of the occupied
territory within or outside this territory, in violation of Article 49 of the Fourth Convention;
67
para.1 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
68
“ŠTELA”
commentary:
' Sub-paragraph ' (a)
3502 Article 49 of the Fourth Convention prohibits all forcible transfers, as well as
deportations of protected persons from occupied territory (paragraph 1). (28) Only the
security of the population of the occupied territory or imperative military reasons can
justify total or partial evacuation of an occupied area; such evacuations may only
take place within the bounds of the occupied territory, except when for material
reasons this is impossible, and protected persons shall be transferred back to
their homes as soon as hostilities in the area in question have ceased (paragraph
2). The Occupying Power may not deport or transfer parts of its own civilian
population into the occupied territory (paragraph 6). The unlawful deportation or
transfer of protected persons are among the grave breaches listed in Article 147.
3503 The part of the sub-paragraph dealing with the transfer or deportation of the
population of the occupied territory is merely a repetition of Article 147of the Fourth
Convention, and Article 49 of that Convention, to which reference is made, continues
to apply unchanged.
3504 Thus the new element in this sub-paragraph concerns the transfer by the
Occupying Power of parts of its own civilian population into the territory it occupies:
this practice, which was a breach, is now a grave breach because of the possible
consequences for the population of the territory concerned from a humanitarian
point of view.69
GC APII，Art 17:
Prohibition of forced movement of civilians
1. The displacement of the civilian population shall not be ordered for reasons related
to the conflict unless the security of the civilians involved or imperative military
reasons so demand. Should such displacements have to be carried out, all possible
measures shall be taken in order that the civilian population may be received under
satisfactory conditions of shelter, hygiene, health, safety and nutrition.
2. Civilians shall not be compelled to leave their own territory for reasons connected
with the conflict.
commentray：
4849 However common Article 3is silent on this matter. (1) And yet the problem is
particularly acute in situations of non-international armed conflict in which there have
been cases, for example, of the forced movement of ethnic groups and national groups
opposed to the central government.
4850 Article 17 serves to fill this gap in the protection. The ICRC introduced this
provision in its draft; it was based on a proposal put forward by experts in 1972 and
inspired by the wording of Article 49of the fourth Convention. (2) The text which was
adopted, with a few additions, has the same tenor as the original draft. (3)
4851 It should be noted that the present article only covers forced movement and does
not, of course, restrict the right of civilians to move about freely within the country,
subject to any restrictions that may be imposed by the circumstances, or to go abroad.
69
paras.3502-3504 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.Commentary of 1987 Repression
of breaches of this Protocol[p.989] Article 85 [ Link ] -- Repression of breaches of this Protocol
' First sentence '
4853 This sentence prohibits the forced displacement of the civilian population,
except in exceptional circumstances of two kinds:
1) The security of the civilian population. It is self-evident that a displacement

designed to prevent the population from being exposed to grave danger cannot be
expressly prohibited.
2) Imperative military reasons. Military necessity as a ground for derogation from a
rule always requires the most meticulous assessment of the circumstances. In this
case, military necessity is qualified by referring to [p.1473] "imperative military
reasons"; Article 49 of the fourth Convention also refers to "imperative military
reasons". The French text uses a slightly different expression: "impérieuses raisons"
while the Spanish text uses here the expression "razones imperiosas". All these terms
mean the same thing. The situation should be scrutinized most carefully as the
adjective "imperative" reduces to a minimum cases in which displacement may be
ordered.
4854 Clearly, imperative military reasons cannot be justified by political motives. For
example, it would be prohibited to move a population in order to exercise more
effective control over a dissident ethnic group.
4855 The article prohibits forced movements "for reasons related to the conflict". In
fact, displacement may prove to be necessary in certain cases of epidemics or
natural disasters such as floods or earthquakes. Such circumstances are not covered
by Article 17, and this clarification was included in the text for that reason. (5)
··········
4859 First, there is a question whether, within the meaning of this provision, the term
"territory" is equivalent to country. The ICRC draft referred to "national territory". (8) Some
amendments proposed substituting the formula "across the frontiers of the country of origin".
(9) It is clear that there was never any doubt in anyone's mind that the phrase was intended to
refer to the whole of the territory of a country. However, the text states that it is prohibited to
compel civilians to leave "their own territory". In fact, this formula appears to be better suited
to all the possible cases which might arise in a situation covered by Protocol II, and to take
into account, in particular, situations where the insurgent party is in control of an extensive
part of the territory. In this case the insurgents, too, should respect the obligation laid down
here, and not compel civilians to leave the area under their authority. (10)
4860 The prohibition covers measures taken against civilians, either individually or in groups.
4861 An example would be expulsion of groups of civilians across the boundaries by armed
forces or armed groups because of military operations. Basically these are the kind of cases
that the Conference intended to cover.
CIHL：
International armed conflict:
“In addition, according to the Fourth Geneva Convention and Additional Protocol I, it
is a grave breach of these instruments to deport or transfer the civilian population of
an occupied territory, unless the security of the civilians involved or imperative
military reasons so demand.
Under the Statute of the International Criminal Court, “the deportation or transfer
[by the Occupying Power] of all or parts of the population of the occupied territory
within or outside this territory” constitutes a war crime in international armed
conflicts.”
The prohibition of the transfer or deportation of civilians is set forth in the Fourth
Geneva Convention.In addition, according to the Fourth Geneva Convention and
Additional Protocol I, it is a grave breach of these instruments to deport or transfer the
civilian population of an occupied territory, unless the security of the civilians
involved or imperative military reasons so demand.Under the Statute of the
International Criminal Court, “the deportation or transfer [by the Occupying Power]
of all or parts of the population of the occupied territory within or outside this
territory” constitutes a war crime in international armed conflicts
Non-international armed conflicts
The prohibition of displacing the civilian population in non-international armed
conflicts is set forth in Additional Protocol II. Under the Statute of the International
Criminal Court, “ordering the displacement of the civilian population for reasons
related to the conflict, unless the security of the civilians involved or imperative
military reasons so demand,” constitutes a war crime in non-international armed
conflicts. This rule is contained in other instruments pertaining also to non-
international armed conflicts.It should also be noted that, under the Statutes of the
International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the
International Criminal Court, deportation or transfer of the civilian population
constitutes a crime against humanity.
The rule prohibiting the forcible displacement of the civilian population is also
specified in a number of military manuals which are applicable in or have been
applied in non-international armed conflicts. The legislation of many States makes it
an offence to violate this rule. The prohibition is also supported by official statements
and reported practice in the context of non-international armed conflicts.
In a resolution on basic principles for the protection of civilian populations in armed
conflicts, adopted in 1970, the UN General Assembly affirmed that “civilian
populations, or individual members thereof, should not be the object of … forcible
transfers”.70In a resolution on the protection of women and children in emergency and
armed conflict, adopted in 1974, the UN General Assembly declared that “forcible
eviction, committed by belligerents in the course of military operations or in occupied
territories, shall be considered criminal”.71 The UN Security Council, UN General
Assembly and UN Commission on Human Rights have condemned instances of
forced displacement in international armed conflicts but also in non-international
armed conflicts, for example, in the context of the conflicts in Bosnia and
Herzegovina, Burundi and Sudan.
The 26th International Conference of the Red Cross and Red Crescent adopted
two resolutions stressing the prohibition of forced displacement of the civilian
population.The ICRC has called on parties to both international and non-international
armed conflicts to respect this rule.72
source:The 26th International Conference of the Red Cross and Red Crescent
Resolution 4:
“1. calls upon States:
70
UN General Assembly, Res. 3318 (XXIX) (adopted by 110 votes in favour, none against and 14 abstentions)
71
UN General Assembly, Res. 2675 (XXV) (adopted by 109 votes in favour, none against and 8 abstentions)
72
see para6 Rule 129. The Act of Displacement,Customary IHL
(a) to respect and ensure respect for international humanitarian law, in particular the
general prohibition of forced displacement of civilians, and to respect the Convention
relating to the Status of Refugees of 1951 and its 1967 Protocol, in particular the
fundamental principle of non-refoulement, as well as other relevant regional
instruments,”
case：
ERITREA-ETHIOPIA CLAIMS COMMISSION
PARTIAL AWARD ：
The claim for deportation relates primarily to evidence that thousands of residents of
Gulomakheda Wereda, including all the residents of Zalambessa who remained there
after the invasion, were compelled in early 1999 to leave their homes and go to
displaced persons camps in Eritrea. Article 49 of Geneva Convention IV provides, in
part, as follows:
Individual or mass forcible transfers, as well as deportations of protected
persons from occupied territory to the territory of the Occupying Power. . .
. . are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of a
given area if the security of the population or imperative military reasons so demand.
Such evacuations may not involve the displacement of protected persons outside the
bounds of the occupied territory except when for material reasons it is impossible to
avoid such displacement.
68. Eritrea argues that the increased risks to inhabitants from Ethiopian artillery fire
by February 1999 justified their mass relocation to IDP camps and, for material
reasons, such camps had to be in Eritrea. While those risks are difficult for the
Commission to evaluate on the basis of the evidence presented, it seems clear that
any evacuation would have to be to a camp in Eritrea, and the Commission
accepts that argument. Consequently, the claim for deportation in violation of
Article 49 is dismissed.
69. Ethiopia also asserts that the conditions at these IDP camps in Eritrea, in
particular Hambokha, were unlawfully harsh. There were isolated and
undetailed allegations of physical torture. The evidence certainly suggests that
conditions there were difficult, even grim, but the evidence falls short of proving a
pattern of abuse or of conditions that were unlawful.
73
Roman Statute
Article 8 (2) (b) (viii) :
Other serious violations of the laws and customs applicable in international armed
conflict, within the established framework of international law, namely, any of the
following :
The transfer, directly or indirectly, by the Occupying Power of parts of its own
civilian population into the territory it occupies, or the deportation or transfer of all or
parts of the population of the occupied territory within or outside this territory
Roman statute:
Article. 8(2)(e)(viii )
Other serious violations of the laws and customs applicable in armed conflicts not
73
para.68-69 Partial Award Central Front—Ethiopia’s Claim 2
of an international character, within the established framework of international law,
namely, any of the following acts:
Ordering the displacement of the civilian population for reasons related to the
conflict, unless the security of the civilians involved or imperative military reasons so
demand;
Elements
1. The perpetrator ordered a displacement of a civilian population.
2. Such order was not justified by the security of the civilians involved or by military
necessity.
3. The perpetrator was in a position to effect such displacement by giving such order.
4. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
cases：
1.Alfred Yekatom and Patrice-Edouard Ngaïssona’
(ii) forcible transfer and deportation, pursuant to and prohibited by
article 7(1)(d) of the Statute, for:
a.
the dislocation of nearly all Muslim persons residing in Cattin and Boeing to PK5,
a predominantly Muslim neighbourhood in Bangui, other parts of the CAR or
neighbouring countries, starting from December 2013 in the context of the attack on
Bangui, including Cattin and Boeing, on 5 December 2013, as set out in paragraphs
252-253 of the DCC and paragraph 92 of the present decision (Count 4);
b.
the dislocation of Bossangoa’s Muslim population to the École de la
Liberté, before being evacuated to other locations, in the context of the
attack on Bossangoa on 5 December 2013 and in the days following the 74
1. Natilici：
Transfers motivated by an individual’s own genuine wish to leave, are lawful. In
determining whether a transfer is based on an individuals “own wish” the Chamber is
assisted by Article 31 of the Geneva Convention IV. 1356 It provides for a general
prohibition of physical and moral coercion covering pressure that is direct or indirect,
obvious or hidden and further hold that this prohibition “applies in so far as the other
provisions of the Convention do not implicitly or explicitly authorise a resort to
coercion”. The jurisprudence of the Tribunal also supports that the term ‘forcible’
should not be restricted to physical coercion. The Kunarac Appeals Judgement held
that the coercive circumstances made “true consent ?…? not possible.” The Chamber
recognises that this statement was made in the context of discussing the definition of
rape, but is of the opinion that the considerations on consent are similar for many
crimes.The determination as to whether a transferred person had a “real choice” has to
be made in the context of all relevant circumstances on a case by case basis. Forcible
transfer is the movement of individuals underduress from where they reside to a place
that is not of their choosing. The Prosecution needs to prove the intent to have the
person (or persons) removed, which implies the aim that the person is not returning.
74
see ICC case ,P109 Corrected version of ‘Decision on the confirmation of charges against Alfred Yekatom and
Patrice-Edouard Ng
521. In order to the Chamber to be satisfied of Article 2(g) of the Statute proof of the
following is required:
i)
the general requirements of Article 2 of the Statute are fulfilled;
ii)
the occurrence of an act or omission, not motivated by the security of the population
or imperative military reasons, leading to the transfer of a person from occupied
territory or within occupied territory;
iii)
the intent of the perpetrator to transfer a person.
2. The findings
(a) Sovi}i and Doljani
522. The Prosecution alleges that the accused Mladen Naletili} was in command of
the forces which on the days following 19 April 1993, “confined the whole of the BH
Muslim civilian population of Sovi}i, around 450 women and children and elderly, to
the hamlet Junuzovi}i, and forcibly transferred them subsequently to the territory of
Gornji Vakuf under control of the ABiH”.The Naletili} Defence does not dispute that
the transfer occurred, but argues that the transfer was conducted following an
agreement between the Chief of the Main Staff of the HVO, Milivoj Petkovi}, and the
commander of the ABiH, Sefer Halilovi}.Further, it is agreed that the
civilians were in the Sovi}i school, but it is argued that they gathered there
spontaneously for their own safety.
523. The Chamber is not satisfied that any such agreement on exchange was
negotiated.The Chamber, however, is of the view that an agreement between two
military commanders or other representatives of the parties in a conflict does not have
any implications on the circumstances under which a transfer is lawful. Military
commanders or political leaders cannot consent on behalf of the individual.
524. The Chamber rejects the argument by the Naletili} Defence that the civilians
gathered spontaneously in the houses of Junuzovi}i, and in the school in Sovi}i for
safety reasons.The BH Muslim civilians of Sovi}i were forced or threatened by force
by HVO soldiers to leave their homes. Witness X described how she and her family
were afraid of the HVO, and sought refuge and safety in the home of their neighbour,
but the HVO soldiers came and forced her and her family to leave the house while the
neighbour could stay.The HVO themselves considered the civilians to be detained
from 23 April 1993.
Defence witness NW testified, in relation to the transfer on 4 May 1993 that “there
were talks with civilians. They had no objections”.The Chamber refutes much of
Defence witness NW’s testimony. An overall consideration of the evidence shows
that the civilians did not have a “real choice” and no consent was expressed to the
transfer. The Chamber considers the general situation in Sovi}i following the attack is
that the women, children and older men were detained for at least ten days prior to the
transfer; buses were provided by the HVO for the transfer and there was a general
discriminatory threat from the HVO directed against the BH Muslims in Sovi}i.
526. The remaining question is whether the transfer was a lawful evacuation. The
civilians were transferred from Sovi}i during the night between 4 and 5 May 1993.
On 18 April 1993 they were forced by armed soldiers to leave their houses. They were
then held under armed guard in crowded housing with approximately seventy people
to each house. No imperative military reasons existed. When a genuine evacuation
takes place, there is an obligation to bring the population back when the
hostilities have ended. No attempts to return them were made. In fact most of their
houses were torched after 18 April 1993. An evacuation must not involve the
movement of protected person to places outside the occupied territory, unless it is
physically impossible to do otherwise.1371 The
civilians were deliberately transferred to an area outside the occupied territory. The
Chamber is satisfied the BH Muslim civilian population in Sovi}i was not evacuated.
527. The Chamber finds the transfers unlawful.
3.IMT case ：ROSENBERG
War Crimes and Crimes against Humanity
Rosenberg is responsible for a system of organized plunder of both public and private
property throughout the invaded countries of Europe. Acting under Hitler's orders of
January 1940 to set up the "Hohe Schule", he organized and directed the "Einsatzstab
Rosenberg", which plundered museums and libraries, confiscated art treasures and
collections, and pillaged private houses. His own instituted in December 1941 at
Rosenberg's suggestion, 69,619 Jewish homes were plundered in the West, 38,000 of
them in Paris alone, and it took 26,984 railroad cars to transport the confiscated
furnishings to Germany. As of 14 2uly 1944, more than 21,903 art objects including
famous paintings and museum pieces, had been seized by
the Einsatzstab in the West. ,With his appointment as Reich Minister for Occupied
Eastern Territories on 17 July 1941, Rosenberg became the supreme authority for
those areas. He helped to formulate the policies of Germanization, exploitation,forced
labor, extermination of Jews and opponents of Nazi rule, and he set up the
administration which carried them out. He took part in the conference of 16 July
1941, in which Hitler stated that they were faced with the task of "cutting up the giant
cake according to our needs, in order to be able: first, to dominate it; second, to
administer it; and third, to exploit it", and indicated that ruthless action was
contemplated. Rosenberg accepted his appointment on the following day. Rosenberg
had knowledge of the brutal treatment and terror to which the Eastern people were
subjected. He directed that the Hague Rules of Land Warfare were not applicable in
the Occupied
Eastern Territories. He had knowledge of and took an active part in stripping the
Eastern Territories of raw materials and foodstuffs, which were all sent to Germany.
He stated that feeding the German People was first on the list of claims on the East,
and that the Soviet People would suffer thereby. His directives provided for the
segregation of Jews, ultimately in ghettos. His subordinates engaged in mass killings
of Jews, and his civil administrators in the East considered that cleansing the Eastern
Occupied Territories of Jews was necessary. In December 1941 he made the
suggestion to Hitler that in a case of hooting 100 hostages, Jews only be
used.Rosenberg had knowledge of the deportation of laborers from the East, of
the methods of "recruiting" and the transportation horrors, and of the
treatment Eastern laborers received in the Reich. He gave his civil administrator
quotas of laborers to be sent to the 'Reich, which had to be met by whatever means
necessary. His signature of approval appears on the order of 14 June 1944 for the
"Heu Aktion", the apprehension of 40,000 to 50,000 youths, aged 10-14, for shipment
to the Reich.
Upon occasion Rosenberg objected to the excesses and atrocities committed by his
subordinates, notably in the case of Koch, but these excesses continued and he stayed
in office until the end. .
Conclusion.
The Tribunal finds that Rosenberg is guilty on all four Counts. 75
2. ICC: the Prosecutor Against Bosco Ntaganda
Counts 12 and 13: Forcible Transfer of Population and Displacement of Civilians
as a Crime Against Humanity (Article 7(1)(d) of the Statute) and as a War Crime
(Article 8(2)(e)(viii) of the Statute)
64. The Chamber clarifies at the outset that, contrary to the submissions of the
Defence,for the purposes of the war crime of displacing civilians, the conduct by
which the perpetrator(s) force(s) civilians to leave a certain area is not limited to an
order, as referred to in element 1 of the relevant Elements of Crimes. The Chamber
considers that, should this not be the case, the actual circumstances of civilian
displacement in the course of an armed conflict would be unduly restricted. This is
specifically reflected in the general introduction to the Elements of Crimes, which
states that “[t]he elements […] apply ‘mutatis mutandis’ to all those whose criminal
responsibility may fall under articles 25 and 28 of the Statute”.
68. Taking into consideration that the UPC/FPLC evicted the civilian population
from the above-mentioned locations, and absent any indication to the contrary in the
evidence, the Chamber considers that the civilians displaced in the course of the First
Attack and the Second Attack were lawfully residing in the locations identified above.
The evidence further indicates that the acts of displacement perpetrated by
UPC/FPLC soldiers during the First Attack and the Second Attack were not justified
by the security of the civilians involved or by military necessity, as there is no
indication of any precautionary measures having been taken before these acts of
displacement were carried out or any reasons linked to the conduct of military
operations. In addition, the means used during the First Attack and the Second Attack
and the modus operandi show that the UPC/FPLC soldiers were in a position to
displace civilians, as further demonstrated by the large number of civilians who
were in fact displaced76
Judicial rights：
GCIII：
Offences committed before capture
ARTICLE 85
Prisoners of war prosecuted under the laws of the Detaining Power for acts committed
prior to capture shall retain, even if convicted, the benefits of the present Convention.
commentary:
a. Type of proceedings
3628 Article 85 employs the terms ‘prosecuted’ and ‘convicted’ which are
ordinarily associated with criminal proceedings.Detaining Powers may, however,
decide to take disciplinary rather than judicial measures in respect of an offence
allegedly committed before capture. The provision clearly applies to criminal
75
IMT, Trial of the Major War Criminals, Judgment, 1 October 1946, p. 295
76
see ICC case,Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor
Against Bosco Ntaganda paras.64-68
proceedings and, thus, a fortiori should also apply in the case of disciplinary
proceedings.This would also be supported by the fact that the provision appears in the
section on general provisions applicable to both disciplinary sanctions and judicial
proceedings.
b. The laws of the Detaining Power
3629 The phrase ‘the laws of the Detaining Power’ must be understood as
comprising both the domestic law of the Detaining Power and any rules of
international law, whether customary or conventional, that may be applied to a
prisoner of war by the competent authorities of the Detaining Power.The argument
that these words exclude crimes under international law is at odds with the drafting
history of Article 85.It was precisely the experience of the war crimes trials of the
Second World War that informed the drafting of the present article, and it was the
understanding that Article 85 would apply to prisoners convicted of war crimes and
crimes against humanity that prompted certain States to enter reservations in this
regard, and other States to declare these reservations as invalid under the Convention.
3630 The wording ‘under the laws of the Detaining Power’ also refers to the rules
that govern penal jurisdiction. In practice, many of the offences or crimes committed
by prisoners of war prior to capture will have been committed outside the national
territory of the Detaining Power. The Detaining Power’s courts must therefore have
the competence to institute proceedings in respect of acts committed outside the
national territory. Such competence will depend on whether there is a proper basis for
jurisdiction, such as pursuant to universal jurisdiction, passive personality or the
protective principle.
2. Acts committed prior to capture
3631 Article 85 prescribes that prisoners of war prosecuted for ‘acts committed
prior to capture’ retain the benefits of the Convention. Prisoners of war prosecuted for
acts committed after capture likewise retain the protection of humanitarian law; this
was already accepted under the 1929 Convention.[27] The phrase ‘prior to capture’
includes acts committed before the person falls into the hands of the Detaining Power,
whether by capture, surrender or upon acceptance of a transfer of a prisoner of war
under Article 12(2).
3632 The word ‘acts’ in the phrase ‘acts committed prior to capture’ covers any
conduct – act or omission – that constitutes an offence under the laws of the Detaining
Power and alleged to have been committed prior to capture. This can include conduct
classified as a crime under international law and conduct that amounts to an offence
under the domestic law of the Detaining Power.
3633 The terms of Article 85 do not limit the types of acts in respect of which a
Detaining Power may prosecute a prisoner of war. However, Article 85 must be read
in conjunction with other provisions of the Convention that restrict the authority of
the Detaining Power to prosecute prisoners for acts committed prior to capture.
In addition, it should be noted that, under Article 31 of the Hague Regulations of
1907 and restated in Article 46(4) of Additional Protocol I, a spy who, after rejoining
the army to which they belong, is subsequently captured by the enemy, must be
treated as a prisoner of war and incurs no responsibility for their previous acts of
espionage. This applies to espionage before the outbreak of hostilities as well as to
that committed in the course of the armed conflict.
3634 The Detaining Power’s authority to prosecute prisoners of war for acts
committed prior to capture is also circumscribed by the so-called ‘combatant’s
immunity’ or ‘combatant’s privilege’. Prisoners of war who are combatants may
not be prosecuted for lawful acts of war committed in the course of an armed conflict,
even if their acts constitute a criminal offence under the domestic laws of the
Detaining Power.Acts shielded by combatant immunity, such as the injuring or killing
of enemy combatants and the destruction of enemy property, constitute criminal
offences in most, if not all, domestic legal systems. Yet, by virtue of this immunity,
combatants may not be prosecuted for such lawful acts of war upon capture by the
adversary. Prisoners of war having committed unlawful acts that constitute
international crimes, such as war crimes, on the other hand, remain subject to
prosecution.
GCIII:
Duration of disciplinary punishments
ARTICLE 90
The duration of any single punishment shall in no case exceed thirty days. Any
period of confinement awaiting the hearing of a disciplinary offence or the award of
disciplinary punishment shall be deducted from an award pronounced against a
prisoner of war.
The maximum of thirty days provided above may not be exceeded, even if the
prisoner of war is answerable for several acts at the same time when he is awarded
punishment, whether such acts are related or not.
The period between the pronouncing of an award of disciplinary punishment and its
execution shall not exceed one month.
When a prisoner of war is awarded a further disciplinary punishment, a period of at
least three days shall elapse between the execution of any two of the punishments, if
the duration of one of these is ten days or more.
Commentary of 2020 Article 90 : Duration of disciplinary punishment:
1. Limit of 30 days
3768 The first sentence of Article 90(1) provides that the duration of any single
punishment must in no case exceed 30 days. The term ‘any single punishment’ refers
to all types of punishments listed in Article 89: fines, discontinuance of privileges,
fatigue duties and confinement.
2. Confinement awaiting a hearing or disciplinary punishment
3769 The second sentence of Article 90(1) requires that any period of
confinement awaiting the hearing of a disciplinary offence or the pronouncement of a
disciplinary punishment must be deducted from the sentence that is ultimately handed
down to a prisoner of war. This provision must be read together with Article 95(2),
which specifies that ‘confinement awaiting the disposal of an offence against
discipline shall be reduced to an absolute minimum and shall not exceed fourteen
days’.
3770 The requirement to deduct from the period of confinement imposed on the
prisoner any time spent in confinement prior to the award of the punishment is self-
evident. Any prior period of confinement must equally be taken into account if the
prisoner is sentenced to another disciplinary punishment, such as fatigue duties or a
fine.
3771 As disciplinary offences must be punished without delay, and as prisoners
of war are generally not in a position to flee or to destroy evidence, the need for
confinement awaiting hearing does not arise under normal circumstances in
connection with disciplinary matters. If deemed necessary by the Detaining Power,
confinement pending hearing can only be resorted to in accordance with the
limitations set forth in Article 95.
3772 If a prisoner of war is accused of having committed an offence liable to a
judicial penalty, the period of confinement awaiting trial may be up to three months.If
the court ultimately awards only a disciplinary punishment, the accused must be freed
immediately, and no further punishment may be imposed, if the period of confinement
awaiting hearing amounted to 30 days or more.
GCIII
ARTICLE 95
A prisoner of war accused of an offence against discipline shall not be kept in
confinement pending the hearing unless a member of the armed forces of the
Detaining Power would be so kept if he were accused of a similar offence, or if it is
essential in the interests of camp order and discipline.
Any period spent by a prisoner of war in confinement awaiting the disposal of an
offence against discipline shall be reduced to an absolute minimum and shall not
exceed fourteen days.
The provisions of Articles 97 and 98 of this Chapter shall apply to prisoners of war
who are in confinement awaiting the disposal of offences against discipline.
Commentary of 2020 Article 95 : Disciplinary procedure: Confinement awaiting
hearing
Paragraph 1: Prohibition of confinement awaiting hearing
3886 Article 95(1) contains a general prohibition on confinement of prisoners of
war who are accused of an offence against discipline and who are awaiting a hearing,
allowing for two exceptions only. Establishing such a prohibition was considered the
best way to avoid any recurrence of the abuses experienced during the Second World
War.
3887 The two alternative exceptions to the prohibition are: 1) where pre-hearing
confinement would also be applied to members of the Detaining Power’s armed
forces accused of a similar offence; and 2) where confinement awaiting hearing is
essential in the interests of camp order and discipline.
3888 The first exception reflects the principle of assimilation. Based on this
exception, the Detaining Power may only keep prisoners of war in confinement
pending hearing if members of its own armed forces would be so kept if they were
accused of a similar offence. However, this is subject to the proviso in paragraph 2
that the confinement be kept to an absolute minimum. This means that it is not
necessarily permitted to confine prisoners of war prior to the hearing for the same
duration as that foreseen for members of the armed forces of the Detaining Power.
3889 The second exception that confinement be ‘essential in the interests of camp
order and discipline’ has, however, been criticized because, if interpreted broadly, it
‘opens the door for improprieties on the part of … the Detaining Power’.To make the
general prohibition of pre-hearing confinement meaningful, the definition of what is
‘essential in the interests of camp order and discipline’ must thus be interpreted
narrowly.The requirement that it is ‘essential in the interests of camp order and
discipline’ indicates that confinement awaiting hearing may only be resorted to if this
is ‘absolutely necessary’ or ‘extremely important’.
3890 Irrespective of whether pre-hearing confinement is based on the principle of
assimilation or on the maintenance of camp order and discipline, it must comply with
all other protections guaranteed by the Convention.
3891 In international armed conflicts since the Second World War, the ICRC has
repeatedly witnessed prisoners of war being placed in confinement immediately
following an allegation of an offence. When such confinement is followed neither by
an investigation nor by an official award of punishment, as was the case in the
instances encountered by the ICRC, it must be regarded as the actual punishment (in
disregard of the procedure laid down in Article 96), rather than confinement awaiting
hearing dealt with in Article 95.
Paragraph 2: Maximum duration of confinement awaiting hearing
3892 Article 95(2) prescribes that confinement of prisoners of war awaiting a
hearing on an alleged disciplinary offence must be reduced to an absolute minimum
and may not exceed 14 days. This provision corresponds with Article 96(1), which
requires that acts that constitute offences against discipline be investigated
immediately. Such an investigation is likely to be less complex than a judicial
process, and any significant delay between the time the offence is discovered and the
awarding of punishment will generally not be justified.
3893 The wording of Article 95(2) is evidence that States desired greater
protection for prisoners of war under pre-hearing confinement than provided for in the
1929 Convention: while the earlier Convention required that pre-hearing confinement
be ‘reduced to a strict minimum’, Article 95(2) introduces stronger wording, whereby
any such period must be reduced to an ‘absolute minimum’. In other words,
confinement awaiting hearing – if permitted at all – must be as short as possible.
Additionally, States prescribed a 14-day maximum for any such confinement, which
cannot be exceeded under any circumstances. This time limit is just under half the
maximum sentence of confinement applicable, and any period spent in pre-hearing
confinement must be deducted from the eventual award.[15] The restriction ensures
that, even in cases where pre-hearing confinement is followed by confinement as a
disciplinary sanction, the maximum duration of confinement can never exceed 30
days. It would follow from this logic that if a disciplinary punishment other than
confinement is applied, the prisoner of war’s pre-hearing confinement should be taken
into consideration when the disciplinary punishment is set.
Paragraph 3: Standards of treatment during confinement
3894 Article 95(3) prescribes that prisoners of war undergoing confinement
awaiting a hearing must be treated in accordance with Articles 97 and 98. These
articles set down essential guarantees regarding the premises in which a prisoner of
war may be held awaiting hearing and minimum standards of treatment and
conditions of confinement. States decided to apply the same standards of treatment to
prisoners of war awaiting disciplinary hearing as those applied to prisoners of war
undergoing disciplinary confinement, in order to prevent the recurrence of the abuses
committed during the Second World War. In those cases, prisoners undergoing pre-
hearing confinement were held in special camps to which prisoners’ representatives
and Protecting Powers had no access and where essential privileges and guarantees
were suppressed.
GCIII
ARTICLE 97
Prisoners of war shall not in any case be transferred to penitentiary
establishments (prisons, penitentiaries, convict prisons, etc.) to undergo disciplinary
punishment therein.
All premises in which disciplinary punishments are undergone shall conform to the
sanitary requirements set forth in Article 25. A prisoner of war undergoing
punishment shall be enabled to keep himself in a state of cleanliness, in conformity
with Article 29.
Officers and persons of equivalent status shall not be lodged in the same quarters as
non-commissioned officers or men.
Women prisoners of war undergoing disciplinary punishment shall be confined in
separate quarters from male prisoners of war and shall be under the immediate
supervision of women.
Commentary of 2020 Article 97 : Execution of disciplinary punishment: Premises
Paragraph 1: Prohibition of transfer to penitentiary establishments
3922 Although domestic prisons and other correctional facilities may afford
better material conditions than a place of confinement in a prisoner-of-war camp,
Article 97(1) prohibits the transfer of prisoners of war to penitentiary establishments
to undergo disciplinary punishment. Article 97(1) does not specify where the
disciplinary sentence must be served. However, Article 22(1) prohibits internment
of prisoners in a penitentiary establishment, which includes the execution of a
disciplinary penalty.Article 97(1) does not prohibit the transfer of an offender from
one prisoner-of-war camp to another, provided that the latter offers all the guarantees
laid down by the Convention. This applies also to transfers from a labour camp to the
main camp. Practice from several international armed conflicts since the Second
World War shows that prisoners of war are typically placed in special facilities
intended for confinement within the prisoner-of-war camp.
3923 The provision seeks to preserve prisoners’ military honour and dignity
by not mixing them with common criminals. Consequently, it is also prohibited to
transfer common criminals to facilities used for disciplinary confinement in prisoner-
of-war camps.
GCIII
Penal sanctions
ARTICLE 129
The High Contracting Parties undertake to enact any legislation necessary to provide
effective penal sanctions for persons committing, or ordering to be committed, any of
the grave breaches of the present Convention defined in the following Article.
Each High Contracting Party shall be under the obligation to search for persons
alleged to have committed, or to have ordered to be committed, such grave breaches,
and shall bring such persons, regardless of their nationality, before its own courts. It
may also, if it prefers, and in accordance with the provisions of its own legislation,
hand such persons over for trial to another High Contracting Party concerned,
provided such High Contracting Party has made out a prima facie case.
Each High Contracting Party shall take measures necessary for the suppression of all
acts contrary to the provisions of the present Convention other than the grave
breaches defined in the following Article .
In all circumstances, the accused persons shall benefit by safeguards of proper trial
and defence, which shall not be less favourable than those provided by Article 105
and those following of the present Convention.
Commentary of 2020 Article 129 : Penal sanctions:
D. Paragraph 2: The obligation to search for and prosecute or extradite alleged
offenders
5125 The 1949 Geneva Conventions were the first international treaties to put
States Parties under an unconditional obligation to search for alleged perpetrators of
grave breaches and to either prosecute before their own courts or extradite them,
regardless of their nationality. This obligation can be referred to as primo prosequi,
secundo dedere (first to prosecute, second to extradite). The Convention clearly puts
the obligations to search, investigate and prosecute first, and this obligation exists
independently of any extradition request.
1. The obligation to search for and prosecute alleged offenders regardless of their
nationality
a. Search for and trial of alleged offenders
5126 The obligations to search for and prosecute alleged offenders imply that
each State Party must provide in its national legislation for the mechanisms and
procedures to ensure that it can actively search for alleged offenders, make a
preliminary inquiry into the facts and, when so warranted, submit any such cases to
the appropriate authorities for prosecution. It is important to note that in paragraphs 2
and 3 of Article 129, the drafters chose to use the words ‘each High Contracting
Party’, leaving no doubt that these obligations are not restricted to Parties to armed
conflict, but apply to all States party to the Conventions.
5127 The decision whether to prosecute an alleged perpetrator should be taken by
competent authorities in line with national legal requirements. National laws
regarding standards of suspicion or grounds for arrest and detention will apply. The
wording of Article 129(2) – ‘bring such persons … before its own courts’ – does not
imply an absolute duty to prosecute or to punish. The competent authorities might
conclude that there are not sufficient reasons to believe that the alleged perpetrator
committed the grave breach or that there is simply not enough evidence available to
secure a conviction.
5128 The obligation to bring alleged offenders before national courts does mean,
however, that if the competent authorities have collected sufficient evidence to bring a
criminal charge, they cannot rely, for example, on national rules of prosecutorial
discretion and decide not to press charges. In those circumstances, they must
prosecute the case. Any other conclusion would be at odds with the obligations
contained in Article 129(2), as well as those contained in common Article 1 to respect
and ensure respect for the Convention.
The option to extradite alleged offenders
5144 Article 129(2) gives States that receive a request for extradition the option
of not prosecuting offenders themselves but rather, if they prefer, handing them over
to a requesting State Party for trial, provided that the said State Party has made out a
prima facie case.
5145 The preparatory work for the Conventions shows that States made a
conscious choice to use the term ‘handing over’ and refused to use the word
‘extradition’.[139] That choice was heavily influenced by the discussions that took
place during the Second World War, notably during the work of the UN War Crimes
Commission. States felt that, in the light of the failure to secure the surrender of war
criminals after the First World War, it was essential to adopt an executive or
administrative procedure, instead of a judicial one like extradition, to facilitate and
expedite the trials of war criminals.[140] The Commission felt that ‘the machinery of
extradition is a slow and cumbersome business, ill-suited to speedy retribution after a
war’.The 1949 Diplomatic Conference was conscious that it was adopting a treaty to
regulate armed conflicts in the years to come, and so it settled on the wording ‘hand
over’, provided that the State Party in question has made out a prima facie case. This
reflected a feeling that it was surely necessary to protect individuals against excessive
or unjustified requests. The choice of the term ‘hand over’ in Article 129 and its
historical significance seem, however, to have been overlooked by States Parties over
the years, and the term used in national legislation and in the literature nowadays is
‘extradition’.
5146 Extradition is an option given to States Parties on whose territory the
accused are or into whose hands they have fallen.[142] It relieves States Parties of
the obligation to submit the case to their appropriate authorities for prosecution. In the
absence of a request for extradition, the obligation to investigate and, if warranted, to
prosecute alleged perpetrators of grave breaches is absolute.
5147 Extradition can be carried out in accordance with the provisions of each
State Party’s legislation, provided that the requesting State has ‘made out a prima
facie case’.This obliges the requesting State to produce evidence showing that the
charges against the accused are sufficient. It has also been defined as requiring ‘actual
evidence that must be presented to the authorities that would allow them to form the
opinion that the person sought would have been required to stand trial had the alleged
conduct of the criminal offence occurred in the requested state’. Most common-law
countries apply this condition, requiring that some evidence or reasonable ground for
the suspicion of guilt of the alleged offenders be provided by the requesting State
before they can be extradited.This is often referred to as the ‘probable cause’ or
‘prima facie’ test. In most civil-law countries, however, judges do not generally
require any proof of culpability of the offence charged, but only the establishment of
the identity and nationality of the accused and the production of various documents,
such as the arrest warrant. Many multilateral treaties that provide for extradition do
not define the quantum of proof, but simply refer to the legal requirements under the
national law of the requested State.
Recent practice in extradition treaties, both bilateral and multilateral, appears to
apply less stringent evidentiary requirements in extradition proceedings,leaving the
Geneva Conventions as probably the only multilateral treaty with a strict prima facie
requirement.
5148 The purpose behind the imposition of the prima face condition[150] is not
only to protect individuals against excessive or unjustified requests, but also to ensure
that the penal proceedings envisaged will not be frustrated or reduced in scope as a
result of transfer to another State Party.[151] In the light of the object and purpose of
Article 129, as well as the obligations contained in Article 1 to respect and ensure
respect for the Conventions, a request for extradition from a State whose aim might be
to protect its own national, and conduct a sham trial that will lead to an acquittal,
should be refused.
5149 To ensure that grave breaches will be prosecuted, States must make sure
that their national law permits them to extradite and seek extradition of suspected
offenders for these crimes. They must also ensure that the double criminality
requirement[ and the political offence exception are not used to prevent extradition
for these crimes.Many national laws preclude the extradition of accused persons who
are nationals of the country holding them. In that case and other cases where
extradition might be refused, the States detaining alleged perpetrators must bring them
before their own courts.
5150 It should also be noted that extradition can take place as long as the
principle of non-refoulement is complied with. For example, States are under an
obligation not to extradite persons to another State where there are substantial grounds
for believing that they might be subjected to torture.
5151 There do not seem to have been many recorded cases of extradition for
grave breaches. In the Ganić case, a senior Magistrates’ Court judge in the United
Kingdom explored the existence of a prima facie case against an alleged perpetrator
of grave breaches. He rejected this finding as two careful and thorough investigations
had previously concluded that there was no sufficient evidence on which to bring
charges against the alleged offender.Ultimately the extradition was refused as the
proceedings were found to be brought for political purposes and therefore amounted
to an abuse of process. In another instance, Cameroon accepted a request from the
Government of Belgium to have Théoneste Bagosora extradited to Belgium to face
prosecution for serious violations of the Geneva Conventions and Additional
Protocols. The domestic court in Cameroon granted the request without requiring
Belgium to provide evidence that the charges against Bagosora were sufficient.
5152 The Geneva Conventions are silent as to the criteria that should be applied
in the event that a State Party receives competing extradition requests for the same
person and for the same conduct amounting to a grave breach. The requested State
Party is therefore left to decide which request takes priority according to its national
legislation. The Informal Expert Group on Effective Extradition Casework Practice
recommends that States use a list of criteria which provide practical guidance to
States on handling concurrent or competing requests for extradition.
5153 Lastly, it is important to stress that the preparatory work for the
Conventions does not exclude the possibility of a State Party handing over an accused
person to an international criminal court or tribunal. It was a deliberate choice of the
1949 Diplomatic Conference not to preclude this possibility.[161] In the case of
competing requests from a State and the ICC, Article 90 of the ICC Statute provides
detailed rules.
F. Paragraph 4: Safeguards of proper trial and defence
5165 Article 129(4) provides: ‘In all circumstances, the accused persons shall
benefit by safeguards of proper trial and defence, which shall not be less favourable
than those provided by Article 105 and those following of the present Convention.’
5166 The experience of the ICRC in the years following the Second World War
showed that certain safeguards of proper trial and defence are essential in all cases
where persons are accused of grave breaches or other war crimes. These safeguards
are particularly necessary where the accused person is tried by a foreign court.
Accordingly, the ICRC included a special article on the subject in the proposals that it
submitted to the 1949 Diplomatic Conference. The Conference did not take up the
suggestion, at any rate not at first. The French delegation, however, realizing the
desirability of placing all accused persons on the same footing, whatever their
individual status, proposed the present paragraph 4 during the discussions in the Joint
Committee. The Joint Committee approved the French proposal, and it was adopted
by the Conference without being modified in any way.[186]
5167 Grave breaches can be committed by civilians and combatants alike.[187]
Both must benefit in all circumstances from the safeguards of proper trial and
defence. The expression ‘safeguards of proper trial and defence’ must be understood
to refer to the minimum judicial guarantees of fair trial and due process. Paragraph 4
provides that such safeguards may not be less favourable than those provided for in
Article 105 and the following articles of the Third Convention. At a minimum, States
Parties must apply the safeguards contained in these articles when conducting war
crimes trials.[188]
5168 Since 1949, the list of judicial guarantees has evolved through the
development of both humanitarian and human rights law.[189] Article 129(4) must
be read in the light of the guarantees listed in Article 75(4) of Additional Protocol I,
which are now recognized as part of customary international law.[190] The judicial
guarantees which are generally recognized today as indispensable include:
– the right of the accused to be judged by an independent and impartial court;
– the obligation to inform the accused without delay of the nature and cause of the
offence alleged;
– the requirement that an accused have the necessary rights and means of defence;
– the right not to be convicted of an offence except on the basis of individual penal
responsibility;
– the principle of nullum crimen, nulla poena sine lege (‘no crime or punishment
without a law’) and the prohibition of a heavier penalty than that provided for at the
time of the offence;
– the right to be presumed innocent;
– the right to be tried in one’s own presence;
– the right not to be compelled to testify against oneself or to confess guilt;
– the right to be advised of one’s judicial and other remedies and of the time limits
within which they may be exercised;
– the right to present and examine witnesses;
– the right to have the judgment pronounced publicly;]
– the right not to be prosecuted or punished more than once by the same Party for the
same act or on the same charge (non bis in idem).
Grave breaches
ARTICLE 130
Grave breaches to which the preceding Article relates shall be those involving any of
the following acts, if committed against persons or property protected by the
Convention: wilful killing, torture or inhuman treatment, including biological
experiments, wilfully causing great suffering or serious injury to body or health,
compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully
depriving a prisoner of war of the rights of fair and regular trial prescribed in this
Convention.
Commentary of 2020 Article 130 : Grave breaches
1. Grave breaches are committed in the context of an international armed
conflict
5186 For an act to amount to a grave breach of the Geneva Conventions, it must
be committed in the context of an international armed conflict. It is not enough for an
international armed conflict to have existed when the crime was committed; there
must also be a sufficient link or nexus between the criminal act and the international
armed conflict. The assessment of whether the acts of the alleged perpetrator were
sufficiently connected with the armed conflict will be made a posteriori, but it must be
made in an objective manner.
5187 The existence of a nexus between the crime and the international armed
conflict is central to the distinction between a grave breach and an ordinary crime. For
example, a murder committed for purely personal reasons while an international
armed conflict is occurring on the territory of a State cannot be said to have been
committed in the context of or associated with the conflict, and therefore does not
amount to the grave breach of wilful killing.
5188 The nexus has been found to be established if proof of a close connection
between the criminal act and the armed conflict as a whole can be shown. This
connection does not necessarily imply a strict geographical or temporal coincidence
between the acts of the accused and the armed conflict.For example, the acts of the
perpetrator need not be committed in the course of fighting or the takeover of a
town.A close connection between the acts of the perpetrator and the armed conflict
can be shown even if substantial clashes were not occurring in the region at the time
and in the place where the crimes were allegedly committed.It is sufficient for the acts
of the perpetrator to be closely related to the hostilities occurring in other parts of the
territories controlled by the Parties to the conflict.
5189 The ICTY Appeals Chamber took the view that the nexus requirement
would be met if the grave breach was committed in ‘furtherance of or under the guise
of the armed conflict’. It also held that:
The armed conflict need not have been causal to the commission of the crime, but the
existence of an armed conflict must, at a minimum, have played a substantial part in
the perpetrator’s ability to commit it, his decision to commit it, the manner in which it
was committed or the purpose for which it was committed.
5190 Various factors have been taken into account by international courts and
tribunals to establish that the acts of the accused were closely related to the armed
conflict, such as:
– the fact that the perpetrator was a combatant;
– the fact that the victim was a person protected under the Geneva Conventions or
Additional Protocol I;
– the fact that the victim was a member of the armed forces of the opposing Party;
– the circumstances in which the crime was committed;
– the fact that the act may be said to serve the ultimate goal of a military campaign;
– the fact that the crime was committed with the assistance or with the connivance of
the Parties to the conflict;
– the fact that the crime was committed as part of or in the context of the perpetrator’s
official duties.
5191 There is no presumption that because an act is committed in time of
international armed conflict, it necessarily constitutes a grave breach. International
courts and tribunals have used the above factors in order to establish beyond a
reasonable doubt that the perpetrators’ acts were closely related to an armed conflict.
The elements of crimes for grave breaches adopted by the Preparatory Commission
for the ICC contains a contextual element, which reads: ‘the conduct took place in the
context of and was associated with an international armed conflict’ (emphasis
added).The drafters chose to use these two expressions cumulatively, on the
understanding that ‘in the context of’ refers to the existence of an armed conflict in
the country or area where the act was committed, and that ‘was associated with’ refers
to the necessary nexus between the armed conflict and the perpetrator’s conduct.The
words ‘associated with’ also indicate that conduct which takes place after the
cessation of active hostilities, but which is still associated with the conflict, can
amount to a grave breach.
·······
7. Wilfully depriving a prisoner of war of the rights of fair and regular trial
a. Material element
5280 The material element of this grave breach is that the perpetrator deprived
one or more prisoners of war of a fair and regular trial by denying their judicial
guarantees as set down in the Convention. This element clarifies the essence of the
deprivation of fair and regular trial, namely the denial of judicial guarantees.
5281 The Third Convention details the conditions under which prisoners of war
may be brought to trial and contains a number of provisions spelling out the judicial
guarantees that prisoners of war must be accorded, at a minimum, by the Detaining
Power.The judicial guarantees listed in the Convention and generally recognized
today as indispensable are:
– the right of the accused to be judged by an independent and impartial court;
– the obligation to inform the accused without delay of the nature and cause of the
offence alleged;
– the requirement that an accused have the necessary rights and means of defence;
– the right not to be convicted of an offence except on the basis of individual penal
responsibility;
– the principle of nullum crimen, nulla poena sine lege (no crime or punishment
without law) and the prohibition of a heavier penalty than that provided for at the time
of the offence;
– the right not to be compelled to testify against oneself or to confess guilt.[218]
– the right to be advised of one’s judicial and other remedies and of the time limits
within which they may be exercised;
– the right to present and examine witnesses;
– the right not to be prosecuted or punished more than once by the same Party for the
same act or on the same charge (non bis in idem).
5282 Since 1949, this list has evolved through the development of both
humanitarian and human rights law. During the negotiation of the ICC Elements of
Crimes for this grave breach, States read this grave breach in light of these
developments and found that this crime may also be committed if judicial guarantees
not explicitly listed in the Geneva Conventions were denied.Article 130 must
therefore be read in light of the guarantees listed in Article 75(4) of Additional
Protocol I, which are now recognized as part of customary international law.The
above list of these judicial guarantees also includes:
– the right to be presumed innocent
– the right to be tried in one’s own presence
– the right to have the judgment pronounced publicly.
5283 The Third Convention also provides some specific procedural requirements
relating to the death penalty. Under the Convention, the death penalty may only be
lawfully imposed and executed against prisoners of war with regard to offences
punishable by death under the laws of the Detaining Power applicable to that Power’s
own forces; the court needs to consider the particular position of the prisoner of war
vis-à-vis the Detaining Power, and the Protecting Power must be duly informed of the
pronouncement of the death penalty six months prior to its execution.[228]
5284 The denial of one of the listed judicial guarantees may not necessarily
amount to a denial of fair or regular trial. Judges will have to assess the seriousness of
the denial of judicial guarantees in each case, in particular if the prisoner of war is
found not guilty despite a denial of judicial guarantees. Conversely, nothing precludes
the denial of one judicial guarantee from amounting to this grave breach if it is serious
enough.
5285 A number of cases since the Second World War illustrate the concept of fair
and regular trial. Courts and tribunals have reached the conclusion that some trials of
prisoners of war during an armed conflict were unfair or irregular, particularly when
the accused had no access to counsel; when they could not prepare their defence and
present witnesses; when they were not informed of the charges against them; when
they had no access to an interpreter; and when the trial took place in a very short
period of time.
5286 More recently, the ECCC found the accused guilty of the grave breach of
depriving prisoners of war of their right to a fair and regular trial, in particular by
violating the rights of the victims to be promptly informed of the offences of which
they were accused; to be protected from collective penalty; to be protected by the
principle of legality; and to be sentenced by a regularly constituted court.
b. Mental element
5287 The wording of the grave breach is ‘wilfully depriving a prisoner of war of
the rights of fair and regular trial prescribed in this Convention’. As mentioned
earlier, the traditional understanding of the word ‘wilful’ in Article 130 is that it
covers both ‘intent’ and ‘recklessness’.
5288 International courts and tribunals have taken this approach when
determining the requisite mental element for these grave breaches.[236] They have
found that it is not sufficient to prove that the alleged perpetrator knew that their act
might possibly lead to the denial of the rights of fair and regular trial.Ordinary
negligence has not been found to be included in the understanding of the word
‘wilful’.
ARTICLE 131
No High Contracting Party shall be allowed to absolve itself or any other High
Contracting Party of any liability incurred by itself or by another High Contracting
Party in respect of breaches referred to in the preceding Article.
Commentary of 2020 Article 131 : Responsibilities of the Contracting Parties
B. Discussion
5291 Article 131 prevents States Parties from absolving themselves or any other
State Party of any liability incurred by them or by another State Party in respect of the
breaches referred to in Article 130. This sentence needs to be understood in the
context of its adoption and its placement in the Geneva Conventions. It is closely
linked to Article 130, which spells out the grave breaches of the Conventions.[7]
5292 First, the expression ‘any liability’ contained in Article 131 includes the
responsibility of States Parties to search for, bring to trial or extradite alleged
perpetrators of grave breaches that is contained in Article 129. Article 131
therefore aims to prevent a situation whereby States Parties, in future peace treaties or
armistices, would absolve themselves or another State Party of this responsibility. The
obligations under Article 129 being absolute, Article 131 means that any agreements
negotiated by States Parties cannot affect the fulfilment of the obligations under
Article 129.
5293 Furthermore, Article 131 aims to prevent an alleged perpetrator of grave
breaches from relying, at trial, on a provision of a peace treaty which, as part of war
settlements, exonerates the State from its responsibility for violations under the
Convention.War reparations are generally negotiated in peace settlements and must
neither render impossible nor hinder the proper prosecution of alleged perpetrators.
Subsequent State practice shows that the adoption of detailed peace treaties did not
prevent the prosecution of certain grave breaches or other war crimes,and in that
respect, one of the aims of Article 131 has therefore been achieved since 1949.
5294 Second, the expression ‘any liability’ contained in Article 131 recalls the
responsibility of States Parties for grave breaches committed by their armed forces or
persons acting under their authority or command, and the requirement for the
responsible State to make full reparation for the loss or injury caused by grave
breaches. This principle is also recognized in a number of treaties, including Article 3
of the 1907 Hague Convention (IV), Article 91 of Additional Protocol I and Article
38 of the 1999 Second Protocol to the Hague Convention for the Protection of
Cultural Property.In addition, it is contained in other texts, such as the 2005 Basic
Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of IHL,
and has been recognized as part of customary international law. This principle applies
to all Parties to armed conflicts, vanquished and victors alike. Article 131 therefore
aims to prevent the defeated Party from being compelled, in an armistice agreement or
peace treaty, to abandon all claims due in respect of grave breaches committed by
persons in the service of the victor. The preparatory work recalls that most States
were of the view that Article 131 does not ‘cover special financial arrangements under
which a State can finally liquidate a claim to damages by an agreed lump sum
payment or a settlement in compensation’.States are free to negotiate between
themselves any financial settlements relating to the end of the armed conflict.
However, Article 131 prevents a situation in which the vanquished would agree to
waive claims against the victors in relation to the right to receive reparation in respect
of the commission of grave breaches.
5295 War reparations between belligerents have often been settled in peace
treaties. It has been common practice for the victors to demand reparation from the
vanquished without reciprocity. Practice following the Second World War does not
reveal that States carved out an exception for the commission of grave breaches;[19]
in some instances the vanquished waived all claims to damages against the victors
arising out of the armed conflict.
5296 The practice in the last 50 years, however, has revealed a tendency for
States party to an armed conflict not to absolve themselves of their liability in respect
of the commission of grave breaches, particularly by establishing means or
mechanisms for individuals to receive reparation arising out of violations of
international law committed during armed conflict. They have taken the form of
mixed claims commissions and quasi-judicial bodies established by the UN Security
Council or by peace treaties The peace agreement of December 2000 between
Ethiopia and Eritrea, for example, establishes an impartial claims commission charged
with deciding all claims between the two governments and between private entities
for loss, damages or injury related to the armed conflict and resulting from violations
of international humanitarian law or other violations of international law.An example
of a quasi-judicial body established by the Security Council is the United Nations
Compensation Commission, which is entrusted with adjudicating claims against Iraq
for any direct loss, damage, including environmental damage, or injury to foreign
governments, nationals and corporations as a result of Iraq’s invasion and occupation
of Kuwait.
5297 Article 131 recalls the responsibility of States for grave breaches committed
by their armed forces or persons acting under their authority or command, a
responsibility which leads to a duty to pay compensation, as spelled out in Article 3 of
the 1907 Hague Regulations and Article 91 of Additional Protocol I. These articles
are silent, however, as to who are the ultimate beneficiaries of reparations for
violations of international humanitarian law. They do not indicate whether only States
are recipients or also individuals, nor do they specify the means of enforcing this
right. Much has been written about the existence of a right for individuals in
international humanitarian law to receive reparation and the ways and means of
enforcing such a right before domestic or international forums. This debate, however,
goes beyond a commentary on Article 131 of the Third Convention, and is addressed
in the commentary on Article 91 of Additional Protocol I, where it most directly fits.
3.Direct participants in hostilities (“unlawful combatants”)
commentary of 2020
GCIII Article 129 :Penal sanction ：
G. Applicability of the grave breaches regime in non-international armed conflicts
5169 The grave breaches regime amounts to a major building block in the
foundation of international criminal law. Despite being restricted to international
armed conflicts and having been largely inoperative for decades, it has acted as a
catalyst in creating a more structurally coherent and comprehensive treaty regime
governing war crimes. In this respect, the question has been raised as to the possible
extension of this regime to non-international armed conflicts.
5170 The preparatory work for the Conventions shows that the issue of individual
criminal responsibility for violations of common Article 3 was discussed only
superficially.A few States wished for common Article 3 to include the possibility for
States to consider violations of this article as war crimes,[204] but most States clearly
rejected this proposal. The majority view at the time was that, except for Article 3, the
provisions of the four Geneva Conventions, including the grave breaches regime,
were not applicable in non-international armed conflicts.[205] The study of the
debates in 1949 on the grave breaches provisions shows that their application in non-
international armed conflicts was not even envisaged.[206] Similarly, international
criminal responsibility for violations of Additional Protocol II was never discussed or
recognized as such during the 1974–1977 negotiations.[207]
5171 Even though the extension of the grave breaches regime to non-international
armed conflicts was not envisaged in 1949, some authors and judicial
pronouncements have argued for it. However, it is difficult to conclude that such
extension has materialized in customary international law in the light of the relative
dearth of State practice and opinio juris supporting such extension.[209] The large
majority of national implementing legislation has not extended the regime of grave
breaches to non-international armed conflicts[210] and, during the negotiation of the
ICC Statute, States, while elaborating the list of war crimes, maintained the
dichotomy between international and non-international armed conflicts. In other
words, the grave breaches regime, which obliges States to either prosecute or extradite
accused persons, was not extended to war crimes committed in non-international
armed conflicts. In practice, the non-applicability of the grave breaches regime to war
crimes committed in non-international armed conflicts should not excessively hamper
the enforcement of individual criminal responsibility in such conflicts, as a growing
number of States have now equipped themselves with the means to exercise universal
jurisdiction over such war crimes. A number of national laws, in particular the
ones enacted since the adoption of the ICC Statute, provide evidence for a right
established in customary international law to extend universal jurisdiction to
serious violations of international humanitarian law in non-international armed
conflicts.
cases：
ICTY Celebicy：
“The language of article 5 77is very broad and its provisions may be applicable in a
wide variety of situations.580 The concept of “activities prejudicial or hostile to the
security of the State” is difficult to define. What appears to be included is, above all,
espionage, sabotage and intelligence activities for the enemy forces or enemy
nationals. The clause cannot simply refer to an individual’s political attitude towards
the State. However, no further guidance as to the kinds of action envisaged is given in
the text of article .
77
Geneva Convention (IV) on Civilians, 1949
While there is no requirement that the particular activity in question must be
judged as criminal under national law before a State can derogate from the rights of
protected civilians under article 5, it is almost certain that the condemned activity will
in most cases be the subject of criminal punishment under national law.However, the
instances of such action that might be deemed prejudicial or hostile to State security
must be judged as such under international law, both for cases arising in occupied and
unoccupied territory. Clearly, a civilian cannot shoot a passing enemy soldier, secrete
a bomb in the enemy encampment, or otherwise directly and intentionally harm his
enemy and hope to retain all the protections of the Fourth Geneva
Convention.However, all of these acts involve material, direct harm to the
adversary, rather than merely granting support to the forces of the party with which
the civilian is aligned.
There can be no doubt that the confinement of civilians can fall under those
“measures of control and security” which parties to a conflict may take according to
article 27 of Geneva Convention IV. This article provides that,
[p]rotected persons are entitled, in all circumstances, to respect for their persons,
their honour, their family rights, their religious convictions and practices, and their
manners and customs. They shall at all times be humanely treated, and shall be
protected especially against all acts of violence or threats thereof and against insults
and public curiosity.
However, the Parties to the conflict may take such measures of control and
security in regard to protected persons as may be necessary as a result of the war.
However, these security measures which States are entitled to take are not
specified. Once again, the Convention merely lays down a general provision and a
great deal is thus left to the discretion of the parties to the conflict as regards the
choice of means. It appears that these would include, for example, a mild restriction
such as the duty of registering and also more stringent measures like assigned
residence or internment. What is essential is that the measures of constraint
adopted should not affect the fundamental right of the persons concerned to be treated
with humanity.The right to respect for the human person covers all the rights of the
individual, that is, those rights and qualities which are inseparable from a person by
the very fact of his or her existence, in particular, the right to physical, moral and
intellectual integrity.
Although the fundamental human rights of the persons concerned are not, generally
speaking, in any danger as a result of some of the administrative measures which
might be taken in relation to them, this is not necessarily so in the case of assigned
residence or internment. The experience of territory, are exceptional measures to be
taken only after careful consideration of each individual case.Such measures are never
to be taken on a collective basis.
(ii) Procedural Safeguards
In case the internment of civilian persons can be justified according to articles 5,
27 or 42 of Geneva Convention IV, the persons so detained must still be granted some
basic procedural rights. These rights are entrenched in article 43 of Geneva
Convention IV which provides as follows:
Any protected person who has been interned or placed in assigned residence
shall be entitled to have such action reconsidered as soon as possible by an
appropriate court or administrative board designated by the Detaining Power for that
purpose. If the internment or placing in assigned residence is maintained, the court or
administrative board shall periodically, and at least twice yearly, give consideration to
his or her case, with a view to the favourable amendment of the initial decision, if
circumstances permit. Unless the protected persons concerned object, the Detaining
Power shall, as rapidly as possible, give the Protecting Power the names of any
protected persons who have been interned or subjected to assigned residence, or who
have been released from internment or assigned residence. The decisions of the courts
or boards mentioned in the first paragraph of the present article shall also, subject to
the same conditions, be notified as rapidly as possible to the Protecting Power.
Article 43 supplements articles 41 and 42 by laying down a procedure which is
designed to ensure that the parties to an armed conflict, which resort to measures of
internment, respect the basic procedural rights of the persons concerned. As Geneva
Convention IV leaves a great deal to the discretion of the detaining party in the matter
of the original internment or placing in assigned residence of an individual, the party’s
decision that such measures of detention are required must be “reconsidered as soon
as possible by an appropriate court or administrative board”.
The judicial or administrative body reviewing the decision of a party to a conflict
to detain an individual must bear in mind that such measures of detention should only
be taken if absolutely necessary for reasons of security. Thus, if these measures were
inspired by other considerations, the reviewing body would be bound to vacate them.
Clearly, the procedures established in Geneva Convention IV itself are a minimum
and the fundamental consideration must be that no civilian should be kept in assigned
residence or in an internment camp for a longer time than the security of the detaining
party absolutely demands.
It need only be mentioned briefly that article 78, relative to the confinement of
civilians in occupied territory, also safeguards the basic procedural rights of the
persons concerned. It can therefore be concluded that respect for these procedural
rights is a fundamental principle of the Convention as a whole.
(c) Findings
For the reasons set out above, it is the opinion of this Trial Chamber that the
confinement of civilians during armed conflict may be permissible in limited cases,
but has in any event to be in compliance with the provisions of articles 42 and 43 of
Geneva Convention IV. The security of the State concerned might require the
internment of civilians and, furthermore, the decision of whether a civilian constitutes
a threat to the security of the State is largely left to its discretion. However, it
must be borne in mind that the measure of internment for reasons of security is an
exceptional one and can never be taken on a collective basis. An initially lawful
internment clearly becomes unlawful if the detaining party does not respect the basic
procedural rights of the detained persons and does not establish an appropriate court
or administrative board as prescribed in article 43 of Geneva Convention IV78
ICRC Access to Persons Deprived of Their Liberty
GCIII
ARTICLE 126
Representatives or delegates of the Protecting Powers shall have permission to go to
all places where prisoners of war may be, particularly to places of internment,
imprisonment and labour, and shall have access to all premises occupied by prisoners
of war; they shall also be allowed to go to the places of departure, passage and arrival
78
paras.567-583 PROSECUTORv.ZEJNIL DELALI]ZDRAVKO MUCI] also known as “PAVO”HAZIM DELI]
ESAD LAND@O also known as “ZENGA”ICTY JUDGEMENT Case No.: IT-96-21-T
of prisoners who are being transferred. They shall be able to interview the prisoners,
and in particular the prisoners' representatives, without witnesses, either personally or
through an interpreter.
Representatives and delegates of the Protecting Powers shall have full liberty to select
the places they wish to visit. The duration and frequency of these visits shall not be
restricted. Visits may not be prohibited except for reasons of imperative military
necessity, and then only as an exceptional and temporary measure.
The Detaining Power and the Power on which the said prisoners of war depend may
agree, if necessary, that compatriots of these prisoners of war be permitted to
participate in the visits.
The delegates of the International Committee of the Red Cross shall enjoy the
same prerogatives. The appointment of such delegates shall be submitted to the
approval of the Power detaining the prisoners of war to be visited.
commentary of 2020:
Role of the ICRC
a. Supervisory role
4937 Article 126(4), first sentence, legally establishes the supervisory role that
the ICRC had for decades undertaken on its own initiative. This does not change the
part played hitherto by the ICRC in relation to prisoners of war but expressly confirms
that ICRC delegates enjoy the same detailed prerogatives as representatives or
delegates of the Protecting Powers when visiting prisoners of war. However, unlike a
Protecting Power, which may be limited to defending the interests of a particular
Power, the ICRC is able to go into all places where prisoners of war are held,
whatever their nationality or origin.
4938 Article 126 grants the ICRC a direct right, regardless of whether
Protecting Powers have been appointed. The separate paragraph reflects the specific
nature of the ICRC as an independent, neutral and impartial humanitarian
organization. In this sense, its role is also distinct from the subsidiary role of
substitute to assume the humanitarian functions of the Protecting Power which, under
specific circumstances, may be entrusted to a humanitarian organization (such as the
ICRC) by the Detaining Power by virtue of Article 10(3).
4939 Stated in this form, supervision under Article 126 is left to the ICRC’s
initiative and may be carried out freely according to circumstances. In performing this
role, the ICRC is not working according to a mandate by a Power on which the
prisoners depend and retains full discretion regarding its own actions. This is in line
with the specific humanitarian nature of the ICRC and its principles of independence,
neutrality and impartiality.It also reflects the ICRC’s concern that it would not always
be suitable or even equipped for exercising in every case complete supervision of the
application of the Conventions. At the time of drafting the Convention, the ICRC was
also concerned about jeopardizing its reputation for independence and neutrality by
carrying out tasks which at that time it considered to be of a somewhat political nature
and thus should fall to the Protecting Powers only. The ICRC initially had a very
restricted interpretation of the concept of ‘humanitarian functions’. Its position
evolved over time and was fully revised in 1971, the ICRC recognizing that all the
tasks falling to a Protecting Power were indeed humanitarian in nature.
4940 The express right to visit prisoners of war must also be distinguished from
the right of humanitarian initiative enshrined in common Article 9.While a proposal
made by the ICRC based on its right of humanitarian initiative may or may not be
accepted by the concerned Parties, an ICRC request, based on Article 126, to visit a
place where prisoners of war are held must be accepted.
4941 In practice, the absence of Protecting Powers in most international conflicts
since 1949 has significantly increased the importance of the ICRC’s role, as well as of
its humanitarian right to request access to all prisoners of war. The reality is that the
ICRC has requested this access since 1949. Its right to visit prisoners of war –
wherever they may be held – is included in all the memoranda that the organization
transmits to the Parties at the beginning of an international armed conflict to remind
them of their obligations under international humanitarian law.79
GCIV
ARTICLE 10
Activities of the International Committee of the Red Cross
The provisions of the present Convention constitute no obstacle to the humanitarian
activities which the International Committee of the Red Cross or any other impartial
humanitarian organization may, subject to the consent of the Parties to the conflict
concerned, undertake for the protection of civilian persons and for their relief.
commentary
1. ' Approved organizations '
The humanitarian activities authorized are to be undertaken by the International
Committee of the Red Cross or by any other impartial humanitarian organization. The
International Committee is mentioned in two capacities -- first on its own account,
because of its special character and its earlier activities, which it is asked to renew
should occasion arise, and which it is desired to facilitate; and secondly, as an
example of what is meant by "impartial humanitarian organization". It must be
remembered that the International Committee of the Red Cross is today, as it was
when it was founded, simply a private association with its headquarters at Geneva,
composed solely of Swiss citizens recruited by co-option. It is therefore neutral by
definition and is independent of any government and of any political party. Being the
founder body of the Red Cross and the promoter of all the Geneva Conventions since
1864, it is by tradition and organization better qualified than any other body to help
effectively in safeguarding the principles expressed in the Conventions.
The organization must be ' humanitarian '; in other words it must be concerned with
the condition of man, considered solely as a human being, regardless of his value as a
military, political, professional or other unit. It must also be ' impartial '. Article 10
does not require it to be international. As the United States delegate at the Conference
remarked, it would have been regrettable if welfare organizations of a non-
international character had been prevented from carrying [p.97] out their activities in
time of war (7). The International Committee of the Red Cross is not itself
international so far as its membership is concerned. It is international in its activities,
however, as its name shows. Furthermore, the Convention does not require the
organization to be neutral.
GCIV
ARTICLE 143
Supervision
Representatives or delegates of the Protecting Powers shall have permission to go to
all places where protected persons are, particularly to places of internment, detention
and work.
They shall have access to all premises occupied by protected persons and shall be able
79
see commentary of 2020 Article 126 of Convention (III) relative to the Treatment of Prisoners of War. Geneva,
12 August 1949.
to interview the latter without witnesses, personally or through an interpreter.
Such visits may not be prohibited except for reasons of imperative military necessity,
and then only as an exceptional and temporary measure. Their duration and frequency
shall not be restricted.
Such representatives and delegates shall have full liberty to select the places they wish
to visit. The Detaining or Occupying Power, the Protecting Power and when occasion
arises the Power of origin of the persons to be visited, may agree that compatriots of
the internees shall be permitted to participate in the visits.
The delegates of the International Committee of the Red Cross shall also enjoy
the above prerogatives. The appointment of such delegates shall be submitted to the
approval of the Power governing the territories where they will carry out their duties.
commentary：
It should be emphasized here that the International Committee of the Red Cross does
not, in fact, exercise and has never exercised real supervision in the legal sense of the
term. The humanitarian purposes for which it exists have led it to make every effort to
ensure that the victims of war are treated humanely and without unnecessary
harshness. Acting in the first place on a purely empirical basis, it later successfully
urged the drafting of legal rules binding on States in this matter. These rules,
contained in the Geneva Conventions, represent general standards of humane conduct.
However, the way in which individuals are in fact treated is of even greater interest to
the Committee than the strict application of rules of law. For that reason its activities
in behalf of the victims of war go in some ways far beyond the actual supervision of
the application of the Conventions which apply to them. Those activities, which can
be termed "factual supervision", are carried out on the Committee's own initiative and
in the name of the inalienable rights of the human individual.
The 1929 Convention relative to the Treatment of Prisoners of War, in assigning
duties to the Protecting Powers, also sanctioned the by then traditional right of the
International Committee to take the initiative. This enabled the Committee from 1939
onwards to renew and extend the factual supervision it had carried out so successfully
during the First World War. It did not take the place of supervision by the
Protecting Powers but merely supplemented it, and it led to numerous
improvements being made in the conditions of prisoners of war and civilian
internees during the Second World War. It is almost beyond doubt that the 1929
Convention would not have been applied as it was and that many infringements of it
would have occurred if the Protecting Powers had not conscientiously visited the
camps from the very beginning and if the International Committee had not once more
sent delegates to almost all the belligerents.
This factual supervision was not given full legal sanction by the Diplomatic
Conference and no request had been made for such sanction. The International
Committee, a private body with strictly humanitarian ends, will doubtless not always
be suitable or even equipped for exercising in every case complete supervision of the
application of the Conventions. Such supervision would go beyond its competence
and the tasks assigned to it by the Conventions themselves. The Committee might
jeopardize its reputation for independence and neutrality by carrying out tasks
which are in fact of a somewhat political nature and thus fall within the purview
of the Protecting Power. On the other hand, factual supervision is implied in Article
9/9/9/10 common to the four Conventions, concerning the International Committee's
right of initiative, an Article which reproduces Article 88 of the 1929 Prisoners of
War Convention. Finally, it is almost explicitly recognized in the last paragraph of
Article 143: "The delegates of the International Committee of the Red Cross shall also
enjoy the above prerogatives". Stated in this form, at once more flexible and less
official, supervision is left to the Committee's initiative and may be carried out
freely according to circumstances and the conditions ruling at the time.
········
Carried out in parallel and often by, very similar methods, these visits, far from
duplicating each other, were complementary. In the use made of the findings,
however, appreciable differences very often appeared. The Protecting Powers acted
under a mandate given by the Powers of origin and the reports which their delegates
drew up after their visits to a camp were communicated only to those Powers. It was
for the Powers of origin, on reading the reports, to ask the Protecting Power to request
the enemy to cease any malpractice which had been discovered. Supervision by the
Protecting Powers was exercised only on behalf of the Powers which had appointed
them its agents. The position of the International Committee was different. Its camp
visits applied to all the occupants without regard to nationality, solely on the basis of
the fact that they were prisoners or internees. The Committee carried out these
inspections, not on behalf of a particular Power, but in the name of humanity and
with a view to putting a stop, as far as possible, to any abuses reported by its
delegates. Thus the reports made by the delegates after each of their visits were
immediately transmitted to the Power responsible for the place of detention visited,
with comments drawing attention to shortcomings noted and urging remedial action.
Moreover, the International Committee was the only institution able to visit in the
same way and at the same time prisoner-of-war and internee camps in almost all the
belligerent countries , while often a Protecting Power visited the prisoners and
internees of only one nationality and in one country. The Committee thus obtained
very complete and precise information which enabled it to compare the situation of
those detained in the various camps and to bring forward supporting evidence in
favour of claims for reciprocal treatment.
Under Articles 9 and 143 of the Fourth Convention, the special position of the
International Committee will be shared henceforth, in part, by the Protecting Powers,
since in future they will carry out supervision not only on behalf of the country for
which they are acting, but on behalf of all the States parties to the Convention. They
will therefore be able henceforth to make direct to the Detaining Powers any criticism
they consider called for; they will intervene on their own initiative, thus assuming an
active instead of a passive role.
The part played by the International Committee remains unchanged and is merely
confirmed by these provisions. The Committee, however, will retain the advantage
over the Protecting Powers of being able to go to some degree automatically into all
camps and places of detention, whatever the nationality of the inmates and in the
national or occupied territories of all the belligerents.
To close this study, it should be said that Article 143 is one of the series of provisions
in the Convention -- and one of the most important -- whose application in occupied
territory is linked to the duration of occupation as provided for in paragraph 3 of
Article 6. In general, and in accordance with paragraph 4 of Article 6 , Article 143
will remain in force after the end of a conflict, so long as there remain protected
persons who have not been released or repatriated. The Protecting Powers and the
International Committee of the Red Cross will therefore continue to visit them and to
supervise the application of those provisions of the Conventions which concern them.
Thus their activities and their responsibilities may continue in certain circumstances
long after the end of a conflict.
a statement：
The International Committee of the Red Cross (ICRC) confirms that it did not take
part in the operation to transfer fighters and civilians from the border Arsal plains to
Syria, contrary to reports in the media.
The Lebanese Red Cross took care of the logistics on the Lebanese side of the border.
The ICRC was not asked by any of the parties involved in the ceasefire agreement-
that followed the Arsal clashes- to play a role in the implementation of the transfer.
The ICRC, meanwhile, stands ready to provide humanitarian assistance to people in
need, whether those who decided to leave or those who decided to stay. 80
GC API
Article 81-- Activities of the Red Cross and other humanitarian organizations
1. The Parties to the conflict shall grant to the International Committee of the Red
Cross all facilities within their power so as to enable it to carry out the humanitarian
functions assigned to it by the Conventions and this Protocol in order to ensure
protection and assistance to the victims of conflicts; the International Committee of
the Red Cross may also carry out any other humanitarian activities in favour of these
victims, subject to the consent of the Parties to the conflict concerned.
2. The Parties to the conflict shall grant to their respective Red Cross (Red Crescent,
Red Lion and Sun) organizations the facilities necessary for carrying out their
humanitarian activities in favour of the victims of the conflict, in accordance with the
provisions of the Conventions and this Protocol and the fundamental principles of the
Red Cross as formulated by the International Conferences of the Red Cross.
1. The High Contracting Parties and the Parties to the conflict shall facilitate in every
possible way the assistance which Red Cross (Red Crescent, Red Lion and Sun)
organizations and the League of Red Cross Societies extend to the victims of conflicts
in accordance with the provisions of the Conventions and this Protocol and with the
fundamental principles of the Red Cross as formulated by the International
Conferences of the Red Cross.
2. The High Contracting Parties and the Parties to the conflict shall, as far as
possible, make facilities similar to those mentioned in paragraphs 2 and 3 available to
the other humanitarian organizations referred to in the Conventions and this Protocol
which are duly authorized by the respective Parties to the conflict and which perform
their humanitarian activities in accordance with the provisions of the Conventions and
this Protocol.
Source: ICRC, Sixty years of the Geneva Conventions: learning from the past to
better face the future, Ceremony to celebrate the 60th anniversary of the Geneva
Conventions, Address by Jakob Kellenberger, President of the ICRC, Geneva, 12
August 2009; available at http://www.icrc.org]
80
Statement：Lebanon: The ICRC did not play a role in the transfer of fighters, civilians from Arsal to Syria
As part of the civilian population, IDPs are protected as civilians in armed conflicts.
If parties to conflicts respected the basic rules of IHL, much of the displacement and
suffering caused to IDPs could be prevented. Nevertheless, there are some aspects of
IHL concerning displacement that could be clarified or improved. These include in
particular questions of freedom of movement, the need to preserve family unity, the
prohibition of forced return or forced resettlement, and the right to voluntary return.

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Defining status:

(a) violence to the life, health, or physical or mental well-being of persons, in

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(3) Members of regular armed forces who profess allegiance to a government or an

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy

III relating to the labour of prisoners of war.

(a) during each military engagement, and

API Art .45 :

2. Direct participants in hostilities (“unlawful combatants”) ：

API，Article 51-- Protection of the civilian population

Whether consitute violation of the Laws or Customs of War：

3. Indirect participants in hostilities (imperative security threats)

4.Nonparticipants in hostilities (“innocent civilians”)

Article 24 makes a distinction between the conditions in transit or screening

2.Nonparticipants in hostilities (“innocent civilians”)

3.Direct participants in hostilities (“unlawful combatants”) ：

civilians in the production of V2 rockets) (Customary IHL Database Volume V § 1859

https://ihl-databases.icrc.org/customary-ihl/eng/docs/src_vnaca); France, General Tribunal at Rastadt of the

2.Nonparticipants in hostilities (“innocent civilians”)：

exception：“innocent civilians ”in occupied territory

GCIV Art 51:

2.Nonparticipants in hostilities (“innocent civilians”)：

1. The perpetrator deported or forcibly transferred, without grounds permitted under

“Deported or forcibly transferred” is interchangeable with “forcibly displaced”.55

GCIII Art 19：

2.Nonparticipants in hostilities (“innocent civilians”)

GCIV ART. 45.

ICC Prosecutor v. Al Bashir

h) Forcible transfer of population as a crime against humanity […] (p. 470).

- (1) Applicable law (p. 470).

- The legal elements of this crime against humanity are:

- iv) By way of expulsion or other coercive acts (p. 473).

- Although incidental displacement as a result of an entirely lawful attack, or

- The prohibition against forcible transfer is intended to protect the right of

exception：“innocent civilians ”in occupied territory

GCIV Art 49:

1) The security of the civilian population. It is self-evident that a displacement

“1. calls upon States:

2.Nonparticipants in hostilities (“innocent civilians”)

3.Direct participants in hostilities (“unlawful combatants”)

ICRC Access to Persons Deprived of Their Liberty

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