Chapter-3 Protection For Participants in NIAC - 240331 - 230749

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Existing Protections for Participants in
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Non-International Armed Conflict
Introduction
In Chapter 2, it was noted that two elements are fundamental to the protection
of any person who participates in an armed conflict. Those elements are
combatant status and its resulting combatant immunity, and POW status and
its resulting protections. The common factor in both combatant and POW
status is their ‘non-criminality’. A legitimate combatant is provided with
immunity from prosecution for his warlike acts provided he obeys the laws of
armed conflict and complies with the criteria for designation as a lawful
combatant. A combatant who falls into the hands of an adverse party is entitled
to treatment as a POW. POW detention is a preventative detention only,
designed to remove the combatant from the field of battle, and to prevent his
return to hostilities. The non-punitive nature of POW detention is reflected in
the rights and privileges that POWs enjoy, such as restrictions on the kinds of
work they are required to do. All these rules regulating the treatment of
combatants and POWs are reflective of the non-criminal status of the
participant.
Currently, no equivalent protected status is articulated in the law regulating
non-international armed conflicts. While the law of non-international armed
conflicts does not expressly prohibit or criminalize participation in non-
international armed conflict, international law does not immunize such
participation from the operation of domestic law. Furthermore, the law of non-
international armed conflict lacks detailed provisions regarding the treatment of
those deprived of their liberty as a result of their participation in the armed
conflict.
As POW status was initially not considered a possibility for non-inter-
national armed conflicts, Common Article 3 determines only that those hors de
combat are to be ‘humanely treated’, and outlines a few key guarantees for such
persons. Protocol II is more detailed regarding the treatment of persons whose
liberty has been restricted, but lacks the specificity of the POW Convention.
Nevertheless, the intent of both CA3 and APII was to replicate the principles,
rather than the details, of Conventions III and IV regarding POWs and other
The Treatment of Combatants and Insurgents Under the Law of Armed Conflict. Emily Crawford.
© Oxford University Press 2010. Published 2010 by Oxford University Press.
Participants in Non-International Armed Conflict 79
persons deprived of their liberty.1 It is true that neither APII nor CA3 contains
any provision for ‘lawful’ combatancy.2 There is also nothing in the customary
international law that replicates combatant status and combatant immunity for
persons who participate in non-international armed conflicts. APII refers to
‘dissident armed forces’ or ‘organised armed groups’.3 CA3 simply mentions
‘parties’ to the armed conflict. No further attempt at defining participants is

made in either document.4 Admittedly, APII does mention a concept approxi-
mating combatant immunity, in the amnesty provision of Article 6(5), which
encourages post-war amnesties for persons who have participated in the armed
conflict. The provision of amnesty is, however, entirely discretionary on the
part of the authorities, and thus does not amount to a pre-war immunity from
criminal prosecution.
Nevertheless, an analysis of the provisions of Common Article 3 and Protocol
II demonstrates that, in large part, the fundamental provisions of the POW
Convention are indeed replicated in these documents. Furthermore, customary
international humanitarian law demonstrates that similar, if not entirely
equivalent, rules and protections to POW provisions exist for those hors de
combat or detained as a result of a non-international armed conflict. Further-
more, the growth in post-war amnesties and other forms of transitional justice
has demonstrated an emergent trend of States waiving criminal prosecutions
against persons who have participated in internal armed conflicts, in favour of
achieving greater political and social aims.
This chapter analyses the current law regarding persons deprived of their
liberty during non-international armed conflicts. First, the essential principles
of the POW Convention will be discussed, and then compared with those
found in CA3 and APII. In this respect, reference will be made to the Com-
mentaries to CA3 and APII to determine the intent of the drafters. The analysis
will then examine whether the intended interpretations of CA3 and APII have
been borne out in practice, both in reported practice during time of armed
conflict, and in case law arising from armed conflicts. In doing so, this chapter
will demonstrate the extent to which the pertinent substantive rules of Con-
vention III are essentially duplicated in the treaty and customary law of non-
international armed conflict. In addition, the chapter will demonstrate that the
proliferation of amnesty accords and other forms of non-punitive, restorative
and transitional justice have gone some way to creating an ex post facto com-
batant status for persons participating in internal armed conflict. This will lay
the groundwork for the discussion in the next chapters of how to fill any
identified lacunae.
1
AP Commentary at 1385, paras 4565–6.
2 3
Again, this term is used in a descriptive sense only. Art 1, Protocol II.
4
See GCIII Commentary at 32–3.
80 Combatants and Insurgents under the Law of Armed Conflict
A Prefatory Comment on Detainee Protections under the 1949

Conventions and the Additional Protocols
Prior to any in-depth comparative analysis of the POW Convention and the
provisions of CA3 and APII, an explanatory note is helpful. The POW Con-

vention contains 143 different provisions. It covers issues as paramount as
prohibitions on coercive questioning and physical maltreatment5 to relatively
basic issues like the provision of a POW canteen.6 In comparison, the relevant
treaty law regarding persons deprived of their liberty in non-international
armed conflicts amounts to 29 articles—28 in APII and the solitary Common
Article 3.
This book does not suggest that the full scope of the POW Convention is
duplicated in only 29 articles of treaty law relating to non-international armed
conflicts. Indeed, the fact that Protocol II contains so few provisions in com-
parison to Protocol I is due entirely to the fact that States, at the time of the
drafting of the Protocols, could not agree on a more expansive text.7 While
some States supported a considerably more wide-ranging instrument for non-
international armed conflicts, many others preferred a more restrictive approach.
Given this situation, it may legitimately be questioned whether an expansive
interpretation of the few relevant treaty provisions is sustainable, especially in
support of such a contentious proposal as that of treating all captives in all
armed conflicts equally.
However, it is contended that functional equivalents to most of the key
provisions regarding POW rights and privileges can be found in Common
Article 3 and Protocol II. Furthermore, where these two instruments fall short,
as will be demonstrated in the next chapter, the protections of international
human rights law may apply to fill the lacunae. The cumulative effect is that
there is a more complete set of rights and protections for persons who participate
in armed conflict than the ‘bare bones’ of CA3 and APII would suggest. There is
certainly enough that the extension of, at the very least, POW treatment, if not
status, should not be too controversial a development. Therefore, this chapter,
and the following chapter on human rights law, concentrate on the key sections
of the POW Convention, relating to treatment of POWs, conditions of cap-
tivity, contact with the exterior, and judicial guarantees. Where such evidence
exists, case law from non-international armed conflicts will be utilized to
demonstrate that these rights and privileges are either respected in practice or
else are held to be legal obligations in all armed conflicts.
5 6
GCIII, Arts 17(4) and 13(1) respectively. GCIII, Art 28.
7
See further infra, in ch 5, for a discussion of the drafting debates regarding the scope of
Protocol II.
General Guarantees for Persons Deprived of Their Liberty

The first set of substantive rules in the POW Convention relates to the general
protection of POWs. Under Articles 13–16 of the POW Convention, POWs
must, at all times, be humanely treated, without discrimination as to their race,

nationality, religious belief, political opinions or any other similar criteria.
Furthermore, POWs must have their physical and personal integrity respected
and protected, with special consideration being paid to the unique status of
women in captivity. Ensuring that these rights and protections are observed at all
times is considered fundamental for persons deprived of their liberty. POWs are
wholly in the care of the adverse party, and are reliant upon their ‘enemy’ to
protect and provide for them. These protections guard against abuses of power
and the arbitrary issuance of adverse rules relating to persons hors de combat.8
Humane Treatment (Article 13, GCIII)

The Commentary to the POW Convention goes into little detail regarding
what exactly constitutes humane treatment, making the more generalized state-
ment that ‘the purpose of the Convention is none other than to define the
correct way to behave towards a human being; each individual is desirous of the
treatment corresponding to his status and can therefore judge how he should, in
turn, treat his fellow human beings.’9 The Commentary goes on to note that
humane treatment is manifested in the observance of the prohibitions contained
in Articles 13 and 14, namely:
. Threats to the life or health of prisoners of war are prohibited.
. POWs are not to be subjected to any kind of physical mutilation, or medical
or scientific experimentation.
. POWs are to be protected against acts of violence and intimidation, and
against insults and public curiosity.
. Corporal punishment is prohibited.
. Measures of reprisal against POWs are also prohibited.
Humane treatment under Common Article 3 and Protocol II

The requirement for ‘humane treatment’ is the first substantive protection of
Common Article 3. Humane treatment must be afforded ‘in all circumstances’.10
8 9
See AP Commentary at 1365, para 4507. GCIII Commentary at 140.
10
That is, it is not to be considered dependent on reciprocity; see Moir, The Law of Internal
Armed Conflict at 60.
However, what actually comprises ‘humane treatment’ is harder to determine.
The Commentary to Common Article 3 notes that it is unnecessary to explain
‘humane treatment’ as the term has ‘entered sufficiently into current parlance to
be understood’.11
The Commentary to the Geneva Conventions analyses humane treatment in
Common Article 3 in the same manner as it does regarding Article 13 of the

POW Convention. That is, it outlines what does not constitute humane treat-
ment.12 These elements are outlined in sub-paragraphs (1)(a)–(d) of Article 3,
and are ‘prohibited absolutely and permanently’.13 Indeed, the Commentary
specifically states that ‘humane treatment’ under CA3 and under Article 13 of
Convention III should be considered interchangeable.14
Article 4(1) of Protocol II refers to ‘humane treatment’, using terminology
found in Article 4 of the Hague Regulations, and in the 1929 and 1949
Conventions.15 This was to ensure that the concept of humane treatment in
international armed conflict was no different from humane treatment in non-
international armed conflict. As noted in the Commentary to the Protocols, ‘the
right of respect for the person must be understood in its widest sense: it covers
all the rights of the individual, that is, the rights and qualities which are insep-
arable from the human being by the very fact of his existence and his mental
and physical powers.’16 Humane treatment is not reducible according to con-
text. It can therefore be argued that ‘humane treatment’ as outlined in GCIII
Article 13 and ‘humane treatment’ as provided for in both CA3 and APII should
be considered equivalent in scope.
A number of judicial bodies have affirmed the applicability of humane
treatment in all armed conflicts.17 In most cases, the judicial bodies simply
referred to the necessity to observe the principle of humane treatment, and
affirmed its customary status, without explaining what constitutes ‘humane
treatment’.18 However, the ICTY in the cases of Delalić and again in Aleksovski
outlined what ‘humane treatment’ means:
A reading of paragraph (1) of common Article 3 reveals that its purpose is to uphold and
protect the inherent human dignity of the individual. It prescribes humane treatment
without discrimination based on ‘race, colour, religion or faith, sex, birth, or wealth, or
any other similar criteria’. Instead of defining the humane treatment which is guaran-
teed, the States parties chose to proscribe particularly odious forms of mistreatment that
11
GCI Commentary at 53.
12
As noted in GCI Commentary at 53: ‘there is less difficulty in enumerating things which are
13
incompatible with humane treatment.’ GCIV Commentary at 38–41.
14 15
GCIII Commentary at 39. See further AP Commentary at 1370, paras 4521–4.
16
AP Commentary at 1370, para 4521.
17
Corte de Apelaciones de Santiago, 26 September 1994, case Lumi Videla, Rol 13.597-94. See
also Hamdan at 66–9, and Nicaragua at 218.
18
Decision of the Constitutional Court of the Russian Federation on the constitutionality of Presi-
dential Decree No 2137 of 30 November 1994, Sobranie zakonodatelstva Rossiyskoy Federatsii, 1995,
No 33, Art 3424 at § 5.
are without question incompatible with humane treatment . . . the general guarantee of
humane treatment is not elaborated, except for the guiding principle underlying the
Convention, that its object is the humanitarian one of protecting the individual qua
human being and, therefore, it must safeguard the entitlements which flow therefrom.19
Indeed, the ICTY in Delalić specifically drew the connection with humane
treatment as outlined in Convention III, and humane treatment as outlined in

APII, noting that an act or omission can be considered inhuman, or inhumane,
if it is incompatible with the principle of humane treatment as provided for in
the Conventions and Protocols. ‘Inhuman’ treatment, the corollary to humane
treatment, may be considered to include ‘acts of violence or intimidation
\inspired not by military requirements or a legitimate desire for security, but by
a systematic scorn for human values", including insult and exposing people to
public curiosity.’20 The ICTY in Kordić and Čerkez confirmed this approach,
noting that for an act to be considered inhumane,21 such acts ‘must in fact cause
injury to a human being in terms of physical or mental integrity, health or
human dignity’.22
Prohibition on Threats to the Life or Health of the POW

(Article 13, GCIII)
Under CA3, humane treatment also comprises the prohibition on murder that is
expressed in Common Article 3(1)(a) as a prohibition on any acts of ‘violence to
life and person, in particular murder of all kinds’. APII contains a similar pro-
hibition in Article 4(2)(a), which outlines a prohibition on ‘violence to the life,
health and physical or mental well-being of persons, in particular murder’. In
this respect, ‘murder’ is meant to include ‘not only cases of homicide, but also
intentional omissions which may lead to death’.23
The prohibition on ‘violence to the life, health and physical or mental well-
being of persons’ is also, according to the Commentary, a prohibition on all
forms of mental and physical torture.24 This prohibition on torture is reflective
of Article 17 of GCIII, which prohibits coercive questioning of detainees and the
Article 87 and 108 rules regarding the execution of disciplinary and judicial
punishments. The connection can also be made with the implied prohibition on
torture included in Article 14 of GCIII, which ensures respect for the physical
and mental person and honour of the POW.25
The prohibition on violence to life, health and the physical well-being of a
person hors de combat has also been affirmed by a number of judicial bodies,
19
Prosecutor v Aleksovski (Judgment), Case IT-95-14/1T, 25 June 1999 at § 49.
20
Prosecutor v Delalić, Mucić, Delić, and Landžo, Case No IT-96-21-T (Judgment), 16 November
1998, at 525, quoting GCIV Commentary at 204; hereinafter Delalić (Judgment).
21
Under Art 5 of the ICTY Statute.
22
Prosecutor v Kordić and Čerkez, Case No IT-95-14/2, Judgment, 26 February 2001 at 269,
23
hereinafter Kordić and Čerkez (Judgment). AP Commentary at 1373, para 4532.
24 25
AP Commentary at 1373, para 4532. See GCIII Commentary at 142–3.
including the Appeal Court of Santiago, Chile in the case of Videla. In that case,
regarding the 1974 kidnapping, torture and murder of Lumi Videla Moya by
Chilean secret police,26 the Court noted that CA3 obliged parties to a non-
international armed conflict ‘to extend humanitarian treatment to persons tak-
ing no active part in the hostilities or who have placed themselves hors de combat
for various reasons, and prohibits at any time and in any place violence to life

and person.’27 The prohibition was also affirmed by the Supreme Court of
Nigeria,28 and by the ICTY in Jelisić, where the ICTY held that ‘the charges for
murder and cruel treatment are based on Article 3 common to the Geneva
Conventions whose customary character has been noted on several occasions by
this Tribunal and the Criminal Tribunal for Rwanda.’29
The ICTY in Delalić drew the clearest parallel between the prohibition on
murder in Convention III and the prohibition on murder in CA3:
There can be no line drawn between ‘wilful killing’ [the wording used re: grave breaches
of the Conventions] and ‘murder’ [the wording of CA3] which affects their content . . .
thus, as it is prohibited to kill protected persons during an international armed conflict,
so is it prohibited to kill those taking no active part in hostilities which constitute an
internal armed conflict.30
The prohibition on violence to life was also affirmed by the ICTR in Ntakiru-
timana and Others, where the accused was indicted for failing to prevent a
massacre and for failing to punish those responsible for the massacre.31
Medical and Scientific Experimentation and Mutilation

(Article 13, GCIII)
Common Article 3 does not contain the detail that GCIII does with regards to
the prohibition on medical and scientific experimentation; only ‘mutilation’ is
listed as one of the proscribed acts in the category of ‘violence to life and person.’
However, it can be argued that the rubric of ‘humane treatment’ would
encompass a prohibition on unnecessary medical procedures and scientific
experimentation. It is also arguable that such acts would be prohibited as
amounting to cruel and inhuman treatment. The Commentary to CA3 notes
that it was considered unnecessary to include an additional prohibition on
‘biological experiments’ as such acts are to be considered covered under Article
3(1)(a).32
26
Known as DINA—the Dirección de Inteligencia Nacional or National Intelligence Directorate.
27
Videla at §§ 6–20.
28
Pius Nwaoga v The State, Supreme Court of Nigeria, 3 March 1972, All Nigeria Law Reports,
Pt 1, Vol 1, at 149.
29
Prosecutor v Jelisić, Judgment, Case No IT-95-10-T, 14 December 1999. See also the ICTY in
Mrkšić, Initial Indictment, Case No IT-95-13, 26 October 1995 at § 26.
30
Delalić (Judgment) at §§ 422–3, 452, and 454.
31
ICTR, Prosecutor v Ntakirutimana and Others, Case No ICTR-96-10-I, 20 October 2000 at
32
§ 5. GCI Commentary at 54.
The provisions in APII are more expansive. Under Article 4(2)(a), mutilation
is prohibited. This prohibition is expanded upon in Article 5(2)(e), which acts as
an obligation upon those who are detaining captives during a non-international
armed conflict. Under the Article, those responsible for the internment or
detention of persons whose liberty has been restricted must ensure that:
[the] physical or mental health and integrity [of detainees] shall not be endangered by

any unjustifiable act or omission. Accordingly, it is prohibited to subject the persons
described in this Article [detainees] to any medical procedure which is not indicated by
the state of health of the person concerned, and which is not consistent with the gen-
erally accepted medical standards applied to free persons under similar medical
circumstances.
In the Chilean case Videla, Lumi Videla Moya had been captured and tortured
by Chilean secret police. Videla died ‘during a torture session at the José
Domingo Cañas facility. According to the autopsy report, the exact cause of her
death was suffocation of the mouth and nose while the body was prone and face
down’.33 The Court stated that CA3 obliged parties to a non-international
armed conflict to ‘extend humanitarian treatment to persons taking no active
part in the hostilities or who have placed themselves hors de combat for various
reasons, and prohibits at any time and in any place . . . mutilation’.
Protection against Acts of Violence and Intimidation and against Insults and
Public Curiosity (Article 13, GCIII)
The law of non-international armed conflict does not use the terminology of
‘acts of violence and intimidation, insults, and public curiosity’. Reference is
instead made to ‘violence to life and person’, and ‘outrages on personal dignity,
in particular humiliating and degrading treatment’. It must be queried as to
whether the terminology used in the laws of non-international armed conflict
mirror closely enough the terminology used in the Geneva Conventions.
‘Violence to life and person’ would seem equivalent to ‘acts of violence’.34
However, a more difficult element is that of ‘acts of intimidation, insults and
public curiosity’. Do the Common Article 3 and Protocol II prohibitions on
cruel, inhuman, degrading treatment or punishment incorporate a prohibition
against acts of intimidation, insults and public curiosity? The Commentary to
Convention III explains that protection from acts of intimidation relates to
protecting the moral independence of the prisoner, while protection of the
prisoner’s honour results from a prohibition on insults and public curiosity.35
33
See Report on the Chilean National Commission on Truth and Reconciliation, Chapter 2,
Section A.2.b.1.3 on victims from the MIR (Revolutionary Left Movement) opposition group.
From the Truth Commission’s Digital Collection available at the United States Institute of Peace
website: <http://www.usip.org/library/tc/doc/reports/chile/1993_pt3ch2_A2b1_1.html>.
34
See above, re: threats to the life or health of a person deprived of their liberty, and the
35
prohibition on murder. GCIII Commentary at 140–6.
The Commentary to CA3 goes into no great detail regarding the exact ambit
of ‘cruel treatment’ or ‘outrages on personal dignity, in particular humiliating
and degrading treatment’, noting only that it was felt to be ‘dangerous to try to
go into too much detail – especially in this domain . . . the more specific and
complete a list tries to be, the more restrictive it becomes. The form of wording
adopted is flexible and, at the same time, precise.’36 The Commentary to APII

also adds nothing to possible interpretations of the ambit of the provisions,37
except with regard to acts of intimidation. The Commentary notes that the
Article 4(2)(h) prohibition on threats to commit any of the proscribed acts in
Article 4(2) amounts to a ‘violence to mental well-being’.
However, if one takes into account the rules of treaty interpretation as
articulated in Article 31 of the Vienna Convention on Treaties,38 it is possible to
gain some further insight into possible interpretations of the terminology used
in the non-international armed conflict instruments. Under Article 31, when
interpreting a treaty, the ordinary meaning must be given to the terms of the
treaty in their context and in the light of the treaty’s object and purpose. For the
purposes of interpretation, reference should be given to the preamble and
annexes of the treaty, as well as the main treaty text.
The Preamble to APII states: ‘recalling . . . that international instruments
relating to human rights offer a basic protection of the human person . . . [and
that] in cases not covered by the law in force, the human person remains under
the protection of the principles of humanity and the dictates of public con-
science’. Given the intent of the CA3, the ‘convention in miniature’,39 and APII,
it seems counter-intuitive to prohibit ‘humiliating and degrading treatment’ and
‘cruel and inhuman treatment or punishment’, and ‘outrages on personal dig-
nity’ in non-international armed conflicts and yet permit acts of ‘intimidation’
and ‘insults and public curiosity’.
CA3 prohibits acts of ‘violence to life and person’40 and further prohibits
‘outrages on personal dignity, in particular humiliating and degrading treat-
ment.’41 In addition, Article 5(2)(e) provides that the mental health and integ-
rity of any person whose liberty has been restricted shall not be endangered by
any unjustified act or omission. The provision was designed to prevent medical
and scientific experimentation; however, the Commentary to APII indicates that
acts that would jeopardize mental health and integrity include any acts that may
result in mental impairment or damage, such as placement in isolation.42 Given
such an expansive interpretation, it is reasonable to suggest that such a provision
would encompass ‘insults and public curiosity’. This conclusion is further sup-
ported by reference to case law involving international human rights law as will
be demonstrated in the next chapter.
36 37
GCI Commentary at 54. See AP Commentary at 1371–6, paras 4521–43.
38
Vienna Convention on the Law of Treaties of 23 May 1969, 1155 UNTS 331.
39 40
GCI Commentary at 48. Common Article 3(1)(a).
41 42
Common Article 3(1)(c). AP Commentary at 1391, para 4588.
Protection and Respect for Detainees’ Person and Honour

(Article 14, GCIII)
Connected to the idea of protecting POWs from threats, intimidation, insults and
public curiosity is the general concept of protecting and respecting a POW’s
person and honour. At the core of both these provisions is the idea that POWs, at

all times, have the right to preserve and protect their physical and mental health
and integrity.43 Article 14, paragraph 1 determines that POWs are entitled in all
circumstances to respect for their persons and honour. This is understood as
respect for the physical person of the prisoner from any direct injury, such as
torture, cruelty, mutilation and medical and/or scientific experimentation.44
POWs are also entitled to respect for their moral person, which is considered to
include ‘a whole gamut of convictions, whether religious, political, intellectual,
social, etc., and, on the other hand, the desire to strive to carry out these convic-
tions’. and that any humiliating or degrading labour should be avoided.45
It is submitted that the constituent elements of respect for the physical and
moral integrity of the person under GCIII are duplicated in the CA3 and APII
protections regarding protection from violence to life or person, humane treat-
ment, non-discrimination, protection from medical or scientific experimenta-
tion or mutilation, and the prohibition on outrages on personal dignity, in
particular humiliating and degrading treatment. Indeed, the Commentary
makes specific note that the Article 5(2)(e) provision is to be interpreted in the
same manner regardless of the character of the conflict, noting that Article 11 of
Protocol I and Article 5(2)(e) of APII are to be considered identical in scope.46
Again, this conclusion is substantiated by cases decided under international
human rights law that will be discussed in the next chapter.
Prohibition on Corporal Punishment (Article 13, GCIII)

Though not expressly stated in GCIII, the Commentary to GCIII suggests that
humane treatment necessarily precludes corporal punishment.47 CA3 does not
explicitly prohibit corporal punishment. However, if humane treatment is
considered to include a prohibition on corporal punishment it can be argued
that CA3 does include an implicit prohibition on corporal punishment. Indeed,
the prohibition on violence to life and person would also seem to encompass a
prohibition on corporal punishment.
Article 4(2)(a) of APII explicitly outlaws corporal punishment, by including it
in the list of prohibitions on violence to the life, health, and physical or mental
well-being of persons.
43 44
GCIII Commentary at 143–6. GCIII Commentary at 143.
45 46
See further GCIII Commentary at 145. AP Commentary at 1391, para 4588.
47
GCIII Commentary at 141.
Furthermore, the express prohibition on corporal punishment under APII
would seem to reflect Article 87 of GCIII, which prohibits the imposition of
corporal punishment as a disciplinary measure against POWs. Case law with
regards to corporal punishment can be found in human rights law, and will thus
be discussed in the next chapter.
Reprisals (Article 13, GCIII)

The law of international armed conflict prohibits reprisals against protected
persons—POWs and civilians. As there are no ‘protected persons’ as such in
non-international armed conflict, CA3 and APII contain no rules prohibiting
‘reprisals’. However, the Commentary to the Conventions asserts that, despite
the exclusion of specific reference to reprisals in CA3, reprisals are, nonetheless,
implicitly prohibited by the Article:
Reprisals . . . do not appear [in CA3] in the list of prohibited acts. Does that mean that
reprisals, while formally prohibited [in GCIV, Article 33], are allowed in the case of non-
international armed conflicts, Article 3 being the only Article which then applies? As we
have seen, the acts referred to under items (a) to (d) are prohibited absolutely and perman-
ently, no exception or excuse being tolerated. Consequently, any reprisal which entails one
of these acts is prohibited, and so, speaking generally, is any reprisal incompatible with the
‘humane treatment’ demanded unconditionally in the first clause of sub-paragraph (1).48
The ‘prohibited acts’ referred to in the above quote are (a) violence to life and
person, in particular murder of all kinds, mutilation, cruel treatment, and torture;
(b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating
and degrading treatment; (d) the passing of sentences and the carrying out of
executions without previous judgment pronounced by a regularly constituted court,
affording all the judicial guarantees that are recognized as indispensable by civilized
peoples. The Commentary goes on to note that, by drafting such a list of prohibited
acts, they were essentially prohibiting reprisals, without actually using the word:
Common Article 3 . . . prohibitions apply and remain applicable ‘at any time and in any
place whatsoever’. Consequently, any reprisal which entails one of these acts is pro-
hibited. In addition, common Article 3 provides that all persons who do not or no
longer take a direct part in hostilities must be treated humanely ‘in all circumstances’.
Any reprisal which is incompatible with this requirement of humane treatment is,
therefore, also prohibited . . . Article 4 of Additional Protocol II similarly allows no room
for reprisals against persons who do not or no longer take a direct part in hostilities.49
The prohibitions in CA3 and APII are absolute. They apply in all cases and there
is no scope for the carrying out of ‘reprisals’ on those protected under the Protocol.
The specific prohibition on collective punishment affirms this approach.50 It
48
See AP Commentary at 1372–3, paras 4529–31.
49
See AP Commentary at 1372, para 4530; and New Rules at 637.
50
See AP Commentary at 1374, paras 4535–6. Indeed, the Commentary goes so far as to state
that in including collective punishment ‘amongst the acts unconditionally prohibited by Article 4 is
virtually equivalent to prohibiting \reprisals" against protected persons’.
seems reasonable to assert that reprisal-like acts against persons deprived of their
liberty would be in violation of both APII and CA3, and thus not permitted under
the law of non-international armed conflict.
The ICTY in both Tadić and Martić reiterated and affirmed the principle that
‘civilian populations, or individual members thereof, should not be the object of
reprisals’.51 As noted by the ICTY in Martić:

. . . although [APII] does not specifically refer to reprisals against civilians, a prohibition
against such reprisals must be inferred from its Article 4. Reprisals against civilians are
contrary to the absolute and non-derogable prohibitions enumerated in this provision.
Prohibited behaviour must remain so ‘at any time and in any place whatsoever’. The
prohibition of reprisals against civilians in non-international armed conflicts is
strengthened by the inclusion of the prohibition of ‘collective punishments’. . . therefore,
the rule which states that reprisals against the civilian population as such, or individual
civilians, are prohibited in all circumstances, even when confronted by wrongful be-
haviour of the other part, is an integral part of customary international law and must be
respected in all armed conflicts.52
Non-Discrimination (Article 16, GCIII)

CA3 applies without any adverse distinction as to race, colour, faith, religion,
sex, birth, wealth, or any other similar criteria. APII’s non-discrimination pro-
vision is contained in Article 2, which determines that the Protocol:
Shall be applied without any adverse distinction founded on race, colour, sex, language,
religion or belief, political or other opinion, national or social origin, wealth, birth or
other status, or on any other similar criteria (hereinafter referred to as ‘adverse distinc-
tion’) to all persons affected by an armed conflict as defined in Article 1.
This is reaffirmed in Article 4, which determines that the fundamental guarantee
of humane treatment is to be applied without ‘adverse distinction’. The Com-
mentary to APII makes it clear that ‘non-discrimination’ under the Protocol and
‘non-discrimination’ under the Conventions is intended to have the same
scope.53
Respect for Religious Practices (Articles 34–38, GCIII)

At this stage, note should be made of the provisions of GCIII that relate to the
right of POWs to practise their religion. Under GCIII, Articles 34–38, the
religious freedom of POWs is protected, ensuring that POWs are allowed
complete latitude in the exercise of their faith and beliefs. As noted in the
51
Tadić (Interlocutory Appeal) at 117. See UNGAR 2675 (XXV ), 25 UN GAOR Supp (No
28), UN Doc A/8028 (1971), UNGAR 48/152, 48 UN GAOR Supp (No 49), UN Doc A/48/49
(1993), and UNGAR 49/207, 49 UN GAOR Supp (No 49), UN Doc A/49/49 (1994).
52 53
Martić (Review of the Indictment) at 16–17. AP Commentary at 1358, para 4482.
Commentary to GCIII, these provisions are a ‘specific instance of the applica-
tion of the principle of equality of treatment without any adverse distinction
based on race, nationality, religious belief, etc’ contained in Article 16 of the
Protocol.54 Therefore, it seems logical to deal with questions of freedom of
religion under the guise of the larger issue of non-discrimination.
Under Article 5(1)(d) of APII, persons deprived of their liberty ‘shall be

allowed to practise their religion and, if requested and appropriate, to receive
spiritual assistance from persons, such as chaplains, performing religious func-
tions’. The element of ‘spiritual assistance’ is considered inalienable from the
right to practise one’s religion: ‘spiritual assistance is a corollary of the right to
practise one’s own religion and is inseparable therefrom.’55
In addition, Article 4(1) of Protocol II provides that ‘all persons who do not
take a direct part or who have ceased to take part in hostilities . . . are entitled to
respect for their . . . convictions and religious practices.’
Special Protection for Women (Articles 14 and 25, GCIII)

GCIII also contains provisions ensuring that women are treated with due regard
as to their sex, and that they should receive treatment as favourable as is granted
to men. Under GCIII, women should be treated in a manner equivalent to male
detainees, except for in circumstances where special regard is required. Examples
of special regard include the provision of separate dormitories or separate
detention facilities, regard due to physical capabilities in the designation of work
duties, and regard for women who might be pregnant or nursing. Specific pro-
tection for the ‘honour and modesty’ of women is also provided in GCIII,
Article 14, which is designed to protect women prisoners against rape, forced
prostitution and any other form of indecent assault. The manner in which such
protections are to be achieved is through the provision of separate dormitories
and sanitary installations.56
APII contains some provisions that deal specifically with special treatment for
women, such as Article 4(2)(e), which prohibits rape and enforced prostitution
and any form of indecent assault. Article 5(2)(a) provides that women should be
quartered separately from men and under the supervision of women. For
detainees held captive with their family, they should be kept with their family.
The more general protections regarding ‘outrages on personal dignity’ and the
‘prohibition on violence to life, health and physical or mental well-being’ would
also seem to provide coverage for women in detention. The Commentary to
APII makes it clear that ‘special regard’ for women includes the provision of
separate sleeping and sanitary facilities for women.57
Both the ICTY and the ICTR have handed down judgments in which the
customary nature of the prohibition on sexual violence is affirmed as a
54 55
GCIII Commentary at 227. AP Commentary at 1388, para 4578.
56 57
GCIII Commentary at 146–8. AP Commentary at 1390, para 4583.
fundamental part of the law of armed conflicts. A number of these cases have
also affirmed rape and sexual violence as a tool of torture58 and genocide,59 and
as an attack on human dignity and physical integrity.60
Provisions Regarding Conditions of Captivity

Under Article 18 of Convention III, POWs are entitled to retain their non-
military personal belongings upon commencement of captivity. This provision
was introduced in response to the experiences of WWII, where the plunder of
POWs’ personal belongings was commonplace. The introduction of the right to
retain personal belongings was done to reiterate one of the fundamental prin-
ciples of POW status; that POWs are ‘in the hands of the enemy Power, but not
of the individuals or military units who have captured them’.61
Neither CA3 nor APII provide any specific provision regarding the right of
detainees to retain their personal belongings upon commencement of detention.
However the confiscation of the personal belongings of persons deprived of their
liberty was addressed in a number of cases before the ICTY, where it was
affirmed that the plunder of private property of detainees upon arrival in camp
was in violation of Article 3(e) of the ICTY Statute.62
Safe and Hygienic Detention Facilities

Under Articles 22–31 of GCIII, the conditions and permissible locations of
detention facilities are outlined. Places of detention must be on land, and in
locations with a temperate climate, one that is not injurious to health. Deten-
tion in prisons is prohibited. No POW may be interned in a location that may
expose him to the effects of the armed conflict, and should be protected from
the effects of the conflict. During their period of detention, POWs are to be
provided with quarters, food, and clothing. The detention facilities must be
maintained to a hygienic standard, and POWs should have access to medical
facilities.
58
See the ICTR in Akayesu (Judgment) at §§ 596–8; and the ICTY in Delalić (Judgment) at
paras 476, 479, and 495–6; and Nikolić (Prosecutor v Nikolić, Review of the Indictment Pursuant to
Rule 61 of the Rules of Procedure and Evidence, Case No ICTY-94-2-R61, 20 October 1995) at
§ 33.
59
ICTR in Akayesu (Judgment) at § 731; and Musema (The Prosecutor v Musema, Judgment,
Case No ICTR-96-12-A, 27 January 2000) at §§ 907, 933 and 966.
60
See the ICTR in Akayesu (Judgment) at §§ 596–8, and the ICTY in Delalić (Judgment) at
§§ 476, 479, and 495–6; Prosecutor v Furundžija, Case No IT-95-17/1-T, Judgment, 10
December 1998 at § 185–6; and Kunarac (Judgment) at §§ 406, 436 and 438.
61
GCIII Commentary at 167, drawing on Art 12 of GCIII.
62
See Jelisić at §§ 46–9. See also Delalić, Initial Indictment of 21 March 1996 at § 37 and Tadić,
Second Amended Indictment, 14 December 1995, at §§ 4 and 4.2.
Safe Location of Camps (Article 23, GCIII)

Under GCIII, POWs are to be detained ‘in an area far enough from the combat
zone for them to be out of danger’.63 This is an on-going duty; should a combat
zone move closer to a POW camp, the camp will need to be evacuated. Fur-
thermore, it is not enough merely to locate the camp away from the conflict

zone. Other protective measures must be taken, such as the provision of air raid
shelters, to ensure that POWs are protected to the same degree as the local
civilian population would be.64
Article 5(1)(b) of APII provides protection for those whose liberty has been
restricted by obliging parties to the armed conflict to afford ‘safeguards. . . as
regards the dangers of the armed conflict’. It is therefore incumbent on Parties to
the armed conflict to situate places of internment or detention as far away from
the combat zone(s) as possible.65 Should the conflict come near to the camps,
the detention camps must be relocated, provided it is safe to do so.66 The
Commentary to APII makes it clear that this provision is the mirror to Article 23
of GCIII.67
In addition, the Party to the conflict responsible for those persons deprived of
their liberty must also ensure that there are on-going protections for those under
their control. As the Commentary to APII determines, the Article 5(1)(b)
obligation to protect persons deprived of their liberty from the dangers of the
armed conflict is an on-going obligation, and not fulfilled simply though the
location of camps away from combat areas. As noted in the Commentary:
it may prove objectively impossible to take prisoners to places located outside the
combat zone or to evacuate them, but the obligation to protect them remains in the
sense that it is prohibited to knowingly expose detainees to danger. For example, in
the case of bombardment, prisoners must be able to seek refuge in shelters like their
guards, and should not be kept in a place where they run much greater risks.68
Location in Climate not Damaging to Health (Article 22, GCIII)

Article 5 of Protocol II provides that ‘the persons referred to in this paragraph
shall, to the same extent as the local civilian population, be provided with . . .
protection against the rigours of the climate.’ Though it does not go into detail
regarding the nature of such protection, the phrase ‘rigours of the climate’ can be
interpreted as to include physical shelter such as dormitories, as well as cooling
and heating mechanisms; these are arguably the most obvious forms of tangible
protection from the ‘rigours of the climate’. As noted in the Commentary,
‘protection against the rigours of the climate suggests clothes for the cold, but
63 64
GCIII Commentary at 187. GCIII Commentary at 186.
65 66
AP Commentary at 1387, para 4575. AP Commentary at 1390–1, para 4586.
67 68
AP Commentary at 1391, para 4586. AP Commentary at 1387, para 4576.
the sun and any intemperate conditions (such as floods, sandstorms etc) may
also endanger human life if there is no shelter available.’69
Provision of Quarters, Food and Clothing (Articles 25–27, GCIII)

CA3 contains nothing relating to the practicalities of detention. At most, the
requirement of ‘humane treatment’ serves as guidance for the conditions of

detention for persons hors de combat in non-international armed conflicts. APII
makes reference to ‘quarters’ but only in the context of a prohibition on issuing
orders of ‘no quarter’ – that is, a prohibition on ordering that no prisoners are to
be taken, and that all enemy combatants are to be killed, even those who sur-
render unconditionally. The oblique inference of the prohibition on orders of
‘no quarter’ is the understanding that persons hors de combat must be taken care
of by Parties to the armed conflict – must be ‘quartered’, given shelter. However,
the practical interpretation of ‘no quarter’ rule rightly remains the prohibition
on the killing of enemy combatants who have surrendered or otherwise rendered
hors de combat. Article 5 of Protocol II provides that persons who have been
detained ‘shall, to the same extent as the local civilian population, be provided
with food and drinking water’. In addition, the more general provisions
regarding the protection of the health of persons deprived of their liberty would
also apply,70 as would provisions regarding humane treatment.71
The ICTY also noted the requirement of providing adequate food, water and
clothing for persons deprived of their liberty. In Krnojelac, the accused was
indicted for failing to provide adequate changes of clothing and for only pro-
viding what amounted to ‘starvation rations’.72
Healthful and Hygienic Camps (Articles 29–31, GCIII)

Under Article 5(1)(b), APII, provision is made for persons deprived of their
liberty to ‘be . . . afforded safeguards as regards health and hygiene’. The Com-
mentary to APII explicates what is entailed in such safeguards:
Although food and water seem the most essential elements, hygiene, health and pro-
tection against the rigours of the climate are also important factors for human survival
. . . a lack of water, defective drainage and damp may cause sickness and epidemics.
Inadequate ventilation, lack of sunlight or of light in general may also make a place
unhealthy and affect health. Other factors, such as the absence of anti-parasitic disin-
fectants may be other decisive elements in the field of health and hygiene.73
Article 5(2)(d), APII, provides that persons deprived of their liberty shall have
the benefit of medical examinations. Article 5(2)(e) determines that the physical
or mental health and integrity of persons deprived of their liberty shall not be
69 70
AP Commentary at 1387, para 4574. Art 5(2)(e).
71
Common Art 3(1); Protocol II, Art 4(1).
72
Prosecutor v Krnojelac, Initial Indictment, Case No IT-97-25, 17 June 1997 at § 5.32; here-
73
inafter Krnojelac (Initial Indictment). AP Commentary at 1387, para 4574.
endangered by any unjustified act or omission. Furthermore, under Article 7,
the wounded, sick, and shipwrecked are to be respected and protected, treated
humanely, and receive medical attention and care. This Article is a development
on CA3, which merely ensures that the wounded and sick shall be collected and
cared for. In addition APII provides ‘safeguards as regards health and hygiene’
for those persons whose liberty has been restricted.74

The ICTY also addressed the need for adequate space for persons who have
been deprived of their liberty. In Aleksovski, the ICTY found that conditions in a
detention camp were unacceptable. Specifically, persons held in detention had to
crouch in order to sleep, and could not lie down.75
Working Conditions (Articles 49–57, GCIII)

Under GCIII, there are detailed rules regarding the kinds of labour POWs are
allowed to undertake, as well as specific prohibitions on certain types of work,
such as unhealthy, dangerous, or humiliating labour, or the removal of anti-
personnel mines.76 It also outlines rules regarding duration of work days,77
provides for regular rest breaks78 and medical supervision,79 as well as rules
regarding remuneration.80
There is nothing in CA3 that specifically relates to persons deprived of their
liberty and any labour they may undertake. There is some provision in APII.
Firstly, under Article 4(f), APII specifically outlaws the practice of slavery or the
slave trade in any form. This Article affirms the customary rule against slavery, as
it expressed in the ICCPR,81 the 1926 Slavery Convention, and the 1956
Convention on the Abolition of Slavery, the Slave Trade and Institutions and
Practices Similar to Slavery.82 As such, no person deprived of their liberty can be
sold into slavery.
APII also contains one provision specific to labour conditions for persons
deprived of their liberty. Article 5(1)(e) determines that persons deprived of
their liberty ‘if made to work, [shall] have the benefit of working conditions and
safeguards similar to those enjoyed by the local civilian population’. As noted in
the Commentary to APII:
detainees or internees do not necessarily have to work; in some cases conditions do not
lend themselves to this. The rule under consideration here, however, refers to cases in
which they are made to work. Working often contributes to improving living condi-
tions, both materially and psychologically, but. . . should not give rise to ill-treatment . . .
it is prohibited to force detainees to carry out unhealthy, humiliating or dangerous work,
bearing in mind the conditions in which the local population works.83
74 75
Art 5(1)(b). Aleksovski (Judgment) at §§ 158, 164, 173, and 182.
76 77 78 79
Art 52, GCIII. Art 53, GCIII. Art 53, GCIII. Art 55, GCIII.
80 81 82
Art 54, GCIII. Art 8. AP Commentary at 1376, para 4541.
83
Detainee Relations with the Exterior and the Role of the ICRC
Communication and Correspondence with the Exterior
(Articles 63 and 70–77, GCIII)
GCIII outlines rules regarding POW contact with the exterior. Under Article 63,

POWs are entitled to receive funds in correspondence from the exterior, for
instance, if a relative wishes to send them money for use in the camp canteen.
Further provision is made in Articles 70–77. Article 70 specifically provides that
within a week of capture, or being moved to a hospital or other camp, the POW is
allowed to send a ‘capture card’, notifying their family of their capture or deten-
tion, and their location. Article 70 also provides that the Central POW Agency,
set up under Article 123 of GCIII, is also notified of the POWs location. The
remaining articles detail the conditions that allow POWs to send and receive
personal correspondence and relief shipments during their detention period.84
The intent behind these provisions is manifold. First, it enables the POW to
stay in contact with loved ones, and to keep a POWs family informed of their
health and well-being, as well as stay informed of the mental and physical
well-being of their family, especially important for the POW’s mental well-
being. As the Commentary to GCIII notes ‘there is no doubt that . . . packages
and parcels from home have a more beneficial effects on morale than parcels
received from an anonymous donor.’85
Secondly, it allows for supplementary relief to be provided,86 such as food,
clothing, medical supplies, and educational materials, if it transpires that the
camp is unable to do so themselves. This may take the form of collective or
individual relief shipments, but is not intended to relieve the Detaining
Authority from the duty to provide for the detainees.87 However, in situations
where a region is experiencing food shortages, external relief is a valuable sup-
plement. Finally, it ensures that any person captured during an armed conflict is
not ‘disappeared’; that is, kept in unacknowledged detention. By being able to
inform families and a Central Agency, the POW is assured that his captivity is
recorded.
Under CA3, there is little regarding on-going contact between persons
deprived of their liberty and the exterior. All that CA3 outlines is that ‘an
impartial humanitarian body, such as the International Committee of the Red
Cross, may offer its services to the Parties to the conflict.’ Thus, the ICRC may,
if allowed by the State, exercise some of its functions, such as arranging relief
shipments.
84
Within limits; censorship of correspondence under Art 76 is permissible on the part of the
Detaining Authority, as is examination of consignments. Limitations on the number of pieces if
correspondence sent and received may also be imposed, under Arts 71–2 of GCIII.
85 86 87
GCIII Commentary at 353. Art 72, GCIII. Art 72, GCIII.
However, more specific provision in made in APII. Under Article 5(2)(b) of
APII, persons whose liberty has been restricted ‘shall be allowed to send and
receive letters and cards, the number of which may be limited by competent
authority if it deems necessary’. As noted in the Commentary to APII, ‘the
exchange of news between persons deprived of their liberty and their families is a
fundamental element of their mental health.’88 The Commentary also notes that

correspondence is a legal right, and therefore cannot be used by the Detaining
Authority as a means of discipline or coercive measure.89 In addition, under
Article 5(1)(c), detainees in a non-international armed conflict are permitted to
receive both individual and collective relief, which may include parcels from
family or from relief agencies, as well as any relief shipments made to the local
civilian population.90
Access by the ICRC

Under Article 123, the ICRC, in conjunction with the affected parties, is
allowed to establish a central POW agency, in a neutral country, for the pur-
poses of keeping track of all persons held in detention, and providing any rele-
vant information to the detainee’s State of Origin, and any other interested
persons, such as relatives of POWs. Under Article 125, provision is made for the
operation of relief societies, to provide material relief to POWs and also to visit
and confer with POWs as to the conditions of their captivity.91 Furthermore,
under Article 126, visits to camps are obligatory on the Detaining Power. The
ICRC or the relevant Protecting Power92 is permitted to visit any camp,
whenever they wish, and the Detaining Authority may not refuse, except in rare
situations, and then only as a temporary matter. During such visits, the relevant
relief society is permitted to interview detainees, confidentially and privately,
without fear of their conversation being reported.93
The intent motivating these Articles is the on-going desire to ensure that
POWs are well treated, have sufficient provisions for their maintenance and
well-being, and have a means by which to register their complaints if their needs
are being neglected by the Detaining Authorities. As noted by the ICRC with
regards to their rationale for visiting prisoners during times of armed conflict:
Visiting people deprived of their freedom in connection with conflict is a core protection
task of the International Committee of the Red Cross (ICRC). The principle of the visits
88 89
AP Commentary at 1390, para 4585. AP Commentary at 1390, para 4585.
90 91
AP Commentary at 1388, para 4577. GCIII Commentary at 594–9.
92
The Protecting Power is a neutral State chosen by the Parties to the conflict to fulfil certain
relief tasks for protected persons during the armed conflict, such as visits to detainees, supervision
of relief shipments etc. The role of Protecting Power is drawn from international diplomatic law,
and is provided for in Geneva Conventions I-III in Art 8, Convention IV in Art 9 and Art 5 of
Protocol I. See generally Sassòli and Bouvier at 280–2; and Sandoz, ‘Implementing International
Humanitarian Law’ in International Dimensions of Humanitarian Law.
93
GCIII Commentary at 605–10.
is that because people who are taken prisoner or detained during, or as a result of, a
conflict, are regarded by their captors as the enemy, they need the intervention of a
neutral, independent body to ensure that they are treated humanely and kept in decent
conditions, and that they have the possibility of exchanging news with their families.94
In contrast to the law of international armed conflicts, there is no legal
imperative for States to accept ICRC assistance or scrutiny regarding persons

deprived of their liberty in relation to non-international armed conflicts. No
treaty enshrines this right, not even APII. Under CA3, ‘an impartial humani-
tarian, such as the International Committee of the Red Cross, may offer its
services to the Parties to the conflict’. Under APII, similar provision is made,
although in more detail than in CA3. Under Article 18 of APII:
1. Relief societies located in the territory of the High Contracting Party, such
as Red Cross (Red Crescent, Red Lion and Sun) organizations may offer
their services for the performance of their traditional functions in relation
to the victims of the armed conflict. The civilian population may, even on
its own initiative, offer to collect and care for the wounded, sick and
shipwrecked.
2. If the civilian population is suffering undue hardship owing to a lack of
the supplies essential for its survival, such as food-stuffs and medical
supplies, relief actions for the civilian population which are of an exclu-
sively humanitarian and impartial nature and which are conducted with-
out any adverse distinction shall be undertaken subject to the consent of
the High Contracting Party concerned.
Therefore, while there is the option for the ICRC to offer their services during a
non-international armed conflict, it is not mandatory for the State in question to
accept the offer.
Nevertheless, the ICRC systematically requests access to persons deprived of
their liberty during non-international armed conflicts, and has, in a number of
instances, been granted access.95 Moreover, in both international and non-
international armed conflicts, the ICRC carries out essentially similar duties.
Indeed, in their visits with prisoners the ICRC makes no distinction as to the
context in which the person is detained. The ICRC treats all detainees, whether
in international or non-international armed conflicts, in the same manner, with
the same requests to the Detaining Authority, which are:
. Access to all persons deprived of their liberty for reasons related to armed
conflict, at all stages of their detention and in all places where they are held.
94
From the ICRC website at <http://www.icrc.org/web/eng/siteeng0.nsf/html/57JRME>.
95
The ICRC has a long history of offering its services during internal armed conflicts; indeed,
these offers were frequently accepted by States even prior to any international legal encouragement
to do so—see Bugnion, The ICRC and the Protection of War Victims at 244–96 for a history of
ICRC involvement in internal armed conflicts prior to the adoption of the Geneva Conventions.
. The possibility of talking freely and in private with the detainees of its choice.
. The possibility of registering the identity of the persons deprived of their
liberty.
. The possibility of repeating its visits on a regular basis.
. Authorization to inform the family of the detention of a relative and to
ensure the exchange of news between persons deprived of their liberty and

their families, whenever necessary.96
The only difference lies with the State’s obligation to accept ICRC involvement.
There is no obligation on States involved in internal armed conflicts to accept an
offer of assistance by the ICRC. However, State practice demonstrates that
States frequently do accept, and in some cases request, such assistance.
In Algeria,97 the ruling French government accepted the ICRC’s January
1955 offer, allowing ICRC delegates to visit places of detention and interview
detainees regarding the conditions of detention. The ICRC were permitted to
interview whomsoever they wished, without witnesses, provided, however, they
limited their questions to the conditions of detention, and not the reasons for
detention. Furthermore, any ICRC report could only be sent to the French
government. The ICRC involvement was credited with the 1958 policy reversal
by the French authorities in Algeria, who had previously refused to treat captured
National Liberation Army (ALN) fighters as combatants, and thus, prisoners of
war. After submission of ICRC reports regarding the treatment of detainees
and suggested improvements to detention conditions, the Commander-in-Chief
of the French Forces ordered that special camps be created for housing captured
ALN fighters. Though not designated POWs, these fighters were, nonetheless,
treated in much the same way as POWs. The ICRC was also granted access to
captured French civilians and soldiers held by the National Liberation
Front (FLN).98
In Nigeria, the ICRC were granted access to Biafran POWs captured by the
Nigerian federal army and also to Nigerian army POWs captured by Biafran
secessionists. They were not, however, granted access to civilian detainees held by
either side. In all, around 175 visits were made to the 19 prison camps collectively
run by both sides to the conflict. The ICRC also oversaw the distribution of food
96
ICRC CIHL Study, Vol I at 445 and Vol II, Pt 2 at 2827–9.
97
The conflict in Algeria, though technically an internal armed conflict, was not actually a non-
international armed conflict, in that the Algerians were fighting for national liberation from the
Colonial French rulers. The inclusion of the Algerian example is to demonstrate that, even when
there was no legal requirement, States have accepted ICRC involvement in the internal affairs of
their State, or, in this instance, in their colonial empire.
98
See generally Bugnion, The ICRC and the Protection of War Victims at 632–3, and Fraleigh,
‘The Algerian Revolution as a Case Study in International Law’, in Falk, (ed), The International
Law of Civil War at 194–207.
supplies to government prisoners held by the Biafrans, continuing to monitor the
welfare of POWs even after the Biafran secessionist war ended.99
In Nicaragua, the ICRC sought to protect insurgents detained by the Somoza
government. When the Somoza government was overthrown and the Sandin-
istas took power, the ICRC sought to assist those former government soldiers
and National Guards who had been taken hostage by the Sandinista Front. In

two such incidents, the ICRC supervised the release of anti-Somoza prisoners
from a Managua prison while the change of power was taking place. The ICRC
presence ensured that violence did not ensue upon the release of the detainees.
When the Somoza government finally collapsed, the ICRC, in conjunction with
the Nicaraguan Red Cross, set up safety zones in the major cities and towns of
Nicaragua, where National Guards who had laid down their arms were able to
find refuge with their families.
Following the insurgency and eventual overthrow of the Somoza government,
the ICRC was allowed access to prisoners held in national prisons and police
stations. They also carried out widespread relief actions, including the distribu-
tion of food, medical and sanitary supplies, educational materials, and assisted in
the training of prison paramedics. The ICRC also established assistance pro-
grammes for the families of detainees. From the beginning of the insurgency to
the end of 1990, when the final detainees were reported to have been released, the
ICRC made 111 visits to Sandinistas held by the Somoza government, and 673
visits to anti-Sandinistas held by the Sandinista regime. During 1979, 6400
prisoners were visited, with that number dropping to 4000 detainees in 1986.100
In El Salvador, the ICRC was given permission to visit all places of detention
where combatants and/or civilians were being held in connection with the armed
conflict taking place in that State. The first of these visits took place in October
1979. In addition, the ICRC established a tracing service that provided infor-
mation for prisoners’ families regarding arrests, transfers, and releases, and was
responsible for the provision and distribution of clothing, toiletries, games, and
other relief items. The ICRC was, however, often barred access to detainees
being held for interrogation. With respect to the armed opposition group, the
ICRC was granted permission to contact the Farabundo Marti National Lib-
eration Front (FMLN), and in 1982, made nine visits to 244 government sol-
diers. Under the supervision of the ICRC, these soldiers were later handed over
to the ICRC delegates and escorted back to ICRC barracks. This later became
routine procedure for the FMLN, who would systematically release any captured
government soldiers to the ICRC.101
99
See Bugnion, The ICRC and the Protection of War Victims at 637; and Moir, The Law of
Internal Armed Conflict at 79–83.
100
See Bugnion, The ICRC and the Protection of War Victims at 639–41.
101
See Bugnion, The ICRC and the Protection of War Victims at 641–2; also Moir, The Law of
Internal Armed Conflict at 120–2.
More recently, the ICRC has engaged in on-going relief missions and detainee
visitations in a large number of States experiencing internal conflict.102 In
2005–2006, the ICRC maintained a presence in nearly 80 States, and was inte-
gral in providing humanitarian relief and in visiting persons deprived of their
liberty in places including Darfur,103 Chad,104 Liberia,105 Sierra Leone,106
Iraq,107 Nepal,108 and Sri Lanka.109 The ICRC also continued negotiations to

resume its duties in Chechnya110 and Myanmar/Burma.111
Judicial Guarantees for Detainees in Internal Armed Conflicts

Under Article 86, and Articles 99–107, the rules regarding judicial proceedings
against a POW are outlined. These provisions incorporate the principle of non
bis in idem112 ensuring that no POW may be punished for the same offence or
same act more than once. The judicial guarantees also reflect the principle nul-
lum crimen sine lege—that ‘no one shall be held guilty of any penal offence on
account of any act or omissions which did not constitute a penal offence, under
national or international law, at the time it was committed.’113 Also included are
rights for the accused, including the right to be informed of the charges,114 right
to trial without undue delay,115 right to the presumption of innocence, rights
and means of defence,116 right to fair trial through due process, right to be tried
by an independent and impartial court,117 right to be present at one’s own trial,
the right to call witnesses118 and right to appeal.119
These judicial guarantees ensure that persons deprived of their liberty in
relation to the armed conflict are afforded all due process rights, and are not
102
Throughout 2005 and 2006, the ICRC had a presence in nearly 80 States, nearly all of which
were experiencing some form of internal unrest and conflict. Only in a few instances, such as in
Ethiopia and Eritrea, were the conflicts of an international character. See the ICRC Annual Report
2005 (hereinafter ICRC AR 2005) and Annual Report 2006 (hereinafter ICRC AR 2006), at 46–56
and 60–6 respectively; available at: <http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/section
_annual_report_2005?OpenDocument> and <http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/
section_annual_report_2006> respectively.
103
ICRC AR 2005 at 115–19; ICRC AR 2006 at 133–7.
104
ICRC AR 2005 at 65–8; and ICRC AR 2006 at 81–5.
105
ICRC AR 2005 at 96–100; and ICRC AR 2006 at 114–18.
106
107
108
109
110
111
ICRC AR 2005 at 168–72; ICRC AR 2006 at 185–8. In all, nearly 500,000 persons whose
liberty had been restricted were visited by the ICRC and nearly US$800 million was spent in
relief programmes. See ICRC AR 2005 and ICRC AR 2006 for a full listing of assisted States.
112 113 114
Art 86, GCIII. GCIII Commentary at 470. Arts 104–5, GCIII.
115 116 117
Art 103, GCIII. Art 105, GCIII. Arts 84, 102 and 105, GCIII.
118 119
Art 105, GCIII. Art 106, GCIII.
stripped of their recourse to legal redress. Judicial guarantees are considered
fundamental to persons already in detention, especially in foreign territory, as
they may not be able to access the full range of judicial guarantees they would in
their own country. Judicial protections and rights are considered a fundamental
human right, whatever the circumstances.120
The bulk of the case law regarding judicial guarantees is found in the deci-

sions of international human rights bodies. To avoid duplication, the relevant
cases will be discussed in the next chapter. It is sufficient for the purposes of this
chapter to examine CA3 and APII.
Judicial Guarantees in Common Article 3 and Protocol II

CA3 prohibits the ‘passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly constituted court
affording all the judicial guarantees which are recognized as indispensable by
civilized peoples’. Article 6(2) of APII goes into more detail than CA3, elabor-
ating on what constitutes judicial guarantees:
(2) No sentence shall be passed and no penalty shall be executed on a person found
guilty of an offence except pursuant to a conviction pronounced by a court offering the
essential guarantees of independence and impartiality. In particular:
(a) the procedure shall provide for an accused to be informed without delay of the
particulars of the offence alleged against him and shall afford the accused before
and during his trial all necessary rights and means of defence;
(b) no one shall be convicted of an offence except on the basis of individual penal
responsibility;
(c) no one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence, under the law, at the time
when it was committed; nor shall a heavier penalty be imposed than that which
was applicable at the time when the criminal offence was committed; if, after the
commission of the offence, provision is made by law for the imposition of a
lighter penalty, the offender shall benefit thereby;
(d) anyone charged with an offence is presumed innocent until proved guilty
according to law;
(e) anyone charged with an offence shall have the right to be tried in his presence;
(f) no one shall be compelled to testify against himself or to confess guilt.
Article 6 of APII elaborates and clarifies the meaning of CA3, by outlining the
minimum procedural guarantees for all persons subject to the authority of a
120
See Dinstein, ‘Human Rights in Armed Conflict: International Humanitarian Law’ in Meron
(ed), Human Rights in International Law: Legal and Policy Issues (2 Vols, Clarendon, Oxford, 1984)
at 349.
belligerent power. Article 6 develops the protections of CA3, and reiterates
similar provisions contained in Conventions III121 and IV.122
Trial by an Independent, Impartial and Regularly Constituted

Court (Articles 84 and 102, GCIII)

The right to a fair trial, by an independent, impartial, and regularly constituted
court is a fundamental right included in both CA3 and Protocol II. CA3 pro-
hibits summary justice via the prohibition of the passing of sentences and the
carrying out of executions without previous judgment pronounced by a regularly
constituted court affording all the judicial guarantees. The right to fair trial is
expanded on in Article 6 of Protocol II. Article 6 provides for fair trial through
the observance of certain rights and protections, including the right of the
accused to be made aware of the particulars of the alleged offence committed;
the right of the accused to the presumption of innocence; the prohibition on
retro-active penal legislation; and protection against self-incrimination.
Individual Criminal Responsibility and the Prohibition on

Collective Punishments (Article 87, GCIII)
CA3 does not explicitly prohibit collective punishment or enshrine the concept
of individual criminal responsibility. However, the Commentary to the Con-
ventions notes that the prohibition on the taking of hostages is an implied
prohibition on collective punishments and/or collective criminal responsibility:
‘the taking of hostages is contrary to the modern idea of justice in that it is
based on the principle of collective responsibility for crime and strikes at per-
sons who are innocent of the crime which it is intended to prevent or
punish.’123
Article 6(2)(b) of APII embodies the principle that there can be no collective
penal responsibility for acts committed by an individual. As noted in the
Commentary to APII, this concept finds expression in every domestic law in
the world.124 This principle is reinforced in Article 4(2)(b) of APII, which
prohibits collective punishments.
The Principle of Legality—Nullum Crimen Sine Lege

(Article 99, GCIII)
Article 6(c) of APII provides that ‘no one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a criminal
121 122 123

Arts 86, 89–108. Arts 64–78. GCIII Commentary at 39.
124
See AP Commentary at 1398, para 4603.
offence, under the law, at the time when it was committed’. The provision draws
on Article 15(1) of the ICCPR.125
Right to be Informed of the Charges (Articles 104–5, GCIII)

The right to be informed of the nature and cause of the accusation and charges is
contained in Article 6(2)(a) of APII, which provides that ‘the procedure shall

provide for an accused to be informed without delay of the particulars of the
offence alleged against him.’
Prohibition on Compelling the Accused to Testify or Confess

(Article 99, GCIII)
That no accused person shall be compelled to testify against himself or be forced
to admit guilt is provided for in Article 6(2)(f) of APII.
Rights and Means of Defence (Article 105, GCIII)

Under Article 6(2)(a) of APII, the accused is to be afforded ‘all necessary rights
and means of defence’. While the Protocol does not go into detail as to what
such rights and means are, instruction can be found in the Commentary to APII,
which elaborates that rights and means of defence include ‘the right to be heard,
and, if necessary, the right to call on the services of an interpreter, the right to
call witnesses for the defence and produce evidence; these constitute the essential
rights and means for defence’.126
Right to Fair Trial through Due Process (Article 105, GCIII)

Summary execution is implicitly prohibited under both CA3 and APII, Article 6(2),
which prohibits the passing of sentences and the carrying out of executions or
penalties unless pursuant to a conviction pronounced by a court offering the
essential guarantees of independence and impartiality, affording all judicial guar-
antees recognized as indispensable by civilized peoples.
Right of Appeal (Article 106, GCIII)

Under Article 6(3) of APII, ‘a convicted person shall be advised on conviction of
his judicial and other remedies and of the time-limits within which they may be
exercised.’
125
See Official Records IV, at 35–6 (CDDH/I/262) and Official Records X at 130 (CDDH/
234/Rev.1, para 87) regarding the debate about this provision, it was felt that in using the wording
‘national law’, as exists in the French version of the Protocol, but not the English, it created the
possibility of two types of domestic law, ie, the law of the State and the law of the insurgents, which
could lead to complications. See also AP Commentary at 1399, paras 4604–7.
126
What all of these rights and protections ensures is that any person detained in
relation to an armed conflict is not subject to the arbitrary or summary oper-
ation of the domestic criminal law of the State that detains them.
Termination of Captivity—A Combatant Immunity for Internal

Armed Conflicts?
Amnesty as ex post facto Combatant Immunity
The only relevant provisions in the law of non-international armed conflict
regarding termination of captivity are found in Protocol II. Article 5(4) states that
‘if it is decided to release persons deprived of their liberty, necessary measures to
ensure their safety shall be taken by those so deciding.’ What is absent from the
law of non-international armed conflict is any concept of pre-conflict guaranteed
combatant immunity. The closest that the law of internal armed conflict comes
to approximating the combatant immunity/POW repatriation concept is the
provision in APII for an amnesty for participants.127 As outlined in Article 6(5):
At the end of hostilities, the authorities in power shall endeavour to grant the broadest
possible amnesty to persons who have participated in the armed conflict, or those
deprived of their liberty for reasons related to the armed conflict, whether they are
interned or detained.128
Granting amnesty at the cessation of hostilities is not obligatory; States are
encouraged to grant amnesty, but need not do so. Moreover, the granting of
amnesty does not have the same legal weight as combatant immunity. Participants
in a non-international armed conflict cannot assume that they will be granted
amnesty at the end of the armed conflict in the same way a combatant in an
international armed conflict can rely on his combatant immunity. Caution must
therefore be exercised when assessing amnesty agreements and declarations. It
must always be remembered that amnesty is a voluntary policy decision made by
the authorities in power at the end of the conflict. There is no legal compulsion on
States to grant amnesty to the ‘losers’; therefore, there is no basis to treat amnesty
provisions as ever being able to support a customary rule, as such State practice
will obviously lack the requisite opinio juris for the formation of a customary rule.
However, the increasing prevalence of amnesty agreements does demonstrate an
emerging trend, even if only for reason of convenience, that States are generally
127
This provision was adopted by consensus by the Diplomatic Conference; see CDDH, Offi-
cial Records, Vol VII, CDDH/Sr.50, 3 June 1977 at 97.
128
This is confirmed and elaborated on in the ICRC CIHL Study, in Rule 159: ‘At the end of
hostilities, the authorities in power must endeavour to grant the broadest possible amnesty to
persons who have participated in a non-international armed conflict, or those deprived of their
liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused
of or sentenced for war crimes.’
inclined towards the granting of amnesties in non-international armed conflicts.
This is important in making the case for uniform application of the laws of armed
conflict. Despite the lack of a legal imperative, State practice has demonstrated a
number of instances where States have granted amnesties for participants in non-
international armed conflicts. Effectively types of retroactive combatant immunity,
these amnesties have taken a number of forms, including special agreements, legis-

lation, and in some instances, general declarations by the authorities in power.129
Amnesty Agreements
In a number of cases, amnesties have been part of the peace treaties adopted to
bring about the end of hostilities within a State. These special agreements have
generally involved all parties to the conflict in their drafting and adoption. For
example, Article 19 of the 1993 Cotonou Agreement on Liberia states:
The Parties . . . agree that . . . there shall be a general amnesty granted to all persons and
parties involved in the Liberian civil conflict in the course of actual military engage-
ments. Accordingly, acts committed by the Parties or by their forces while in actual
combat or on the authority of any of the Parties in the course of actual combat are
hereby granted amnesty.130
Amnesties annexed to or included in peace agreements have been incorpor-
ated in such documents as the Esquipulas II Accords resolving the Central
American conflicts of the 1980s,131 the Agreement between the Parties to the
Conflict in Bosnia and Herzegovina,132 Cotonou Agreement on Liberia,133
General Amnesty Proclamation Order annexed to the 1997 Sudan Peace
Agreement,134 Moscow Agreement on Tajikistan,135 Peace Agreement between
129
For a general outline of the following amnesty agreements, see ICRC CIHL Study, Vol II: Pt 2
at 4017–44.
130
Cotonou Agreement, 25 July 1993, UN Doc S/26272, available at: <http://www.c-r.org/
our-work/accord/liberia/cotonou-accord%20.php>.
131
Signed by the Heads of State of Costa Rica, Nicaragua, Guatemala, Honduras and El Sal-
vador. The amnesty provision is contained in Section 1(b) of the 1987 Esquipulas II Accords;
available at <http://www.envio.org.ni/articulo/3209>.
132
Art VI of the 1995 Agreement on Refugees and Displaced Persons annexed to the Dayton
Accords; see also Art 3(1) of the 1992 Agreement between the Parties to the Conflict in Bosnia and
Herzegovina on the Release and Transfer of Prisoners. Available at: <http://www.ohr.int/dpa/
133
default.asp?content_id=380>. Art 19.
134
Amnesty provisions are noted in the Preamble and in Arts 1 and 2 of the General Amnesty
Proclamation Order concerning Sudan, annexed to the 1997 Sudan Peace Agreement. Art 6 of the
Order establishes a Joint Amnesty Commission for the implementation of amnesty agreements.
Available at <http://www.simonrgd.com/THE%20SUDAN.htm>.
135
UN Doc A/52/219; UN Doc S/1997/510, 27 June 1997. See the 1996 Protocol on the
Commission on National Reconciliation in Tajikistan, the 1997 Protocol on Tajik Refugees, the
1997 Statute of the Tajik Commission on National Reconciliation, the Protocol on Political
Questions concerning Tajikistan, the 1997 Bishkek Memorandum, and the 1997 Protocol on the
Guarantees of Implementation of the General Agreement on the Establishment of Peace and
National Accord in Tajikistan. All of these documents and instruments form part of the 1997
General Agreement on the Establishment of Peace and National Accord in Tajikistan; available at:
<http://www.reliefweb.int/rw/RWB.NSF/db900SID/MHII-62364H?OpenDocument>.
the Government of Sierra Leone and the RUF,136 and Protocol II to the Arusha
Peace and the Reconciliation Agreement for Burundi.137
A number of these agreements also include provisions to ensure that the amnesty
is not circumvented by existing domestic legislation. For instance, Article VI of the
1995 Agreement on Refugees and Displaced Persons annexed to the Dayton
Accords states: ‘In no case shall charges for crimes be imposed for political or other

inappropriate reasons or to circumvent the application of the amnesty.’
Domestic Amnesty Legislation

In some instances, amnesty is granted in the form of legislation, either as a blanket
amnesty, or else enacting a system whereby persons wishing to be granted amnesty
make an application to have their case assessed and amnesty either granted or
denied. For instance, Article 1 of Colombia’s Amnesty Decree states that:
The National Government can grant, in every particular case, the benefits of a pardon or
amnesty for offences or acts which constitute crimes of rebellion, sedition, putsch,
conspiracy and related acts, committed before the promulgation of the [Constitution],
when, in its opinion, the guerrilla group of which the person asking for [the pardon or
amnesty] is a member has demonstrated its intention to reintegrate into civil life . . . the
benefits provided for in this decree can neither be granted with respect to atrocities nor
with respect to murder committed outside a situation of combat or in taking advantage
of the defenselessness of the victim.
Amnesty legislation has been enacted in Algeria,138 Argentina,139 Bosnia and
Herzegovina,140 Burundi,141 Chile,142 Colombia,143 Croatia,144 El Salvador,145
Guatemala,146 Peru,147 Russia,148 South Africa,149 Tajikistan,150 and Zim-
babwe.151 As with amnesties that are enacted through special agreements,
136
Art IX of the 1999 Lomé Peace Agreement between the Government of Sierra Leone and the
RUF, known as ‘Pardon and Amnesty’; see also Art 10 of the Statute of the Special Court for Sierra
Leone, which makes note of the amnesty provisions, and notes further that crimes against humanity,
violations of Common Art 3, Protocol II, and any other serious violation of IHL will not enjoy
amnesty under the Court’s statute. Available at <http://www.sierra-leone.org/lomeaccord.html>.
137
Art 22(2)(c); available at <http://www.usip.org/library/pa/burundi/pa_burundi_08282000_
138
toc.html>. Art 3, Law on National Reconciliation (1999).
139
Arts 1 and 5, Amnesty Law (1973).
140
Art 1, Amnesty Law (amended; 1996) and Art 1, Law on Amnesty (1999).
141
Arts 1–2, Draft Law on Provisional Immunity for Political Leaders (2001).
142 143
Art 1, Decree-Law on General Amnesty (1978). Art 1, Amnesty Decree (1991).
144
Arts 1 and 3, General Amnesty Law (1996).
145
Law on Amnesty to Achieve National Reconciliation (1997), enacted in accordance with the
Esquipulas Accords of 1987; and Arts 1, 2, and 4, General Amnesty Law for Consolidation of Peace
146
(1993). Arts 2 and 4, National Reconciliation Law (1996).
147
Law on Amnesty for Retired Officers of the Armed Forces (1996) and Law on Amnesty for
Military and Civil Personnel (1996).
148
Preamble and Arts 1–3, Law on Amnesty for Acts Committed in the Context of the Conflict in
149
Chechnya (1997). Art 4(c), Promotion of National Unity and Reconciliation Act (1995).
150
Arts 1, 6, and 8(b)–(c), General Amnesty Law (1998) and Preamble and Articles 1–3, Reso-
lution on Amnesty of Opposition Fighters (1999).
151
Art 2, Amnesty Act (1979) and Art 2, Amnesty (General Pardon) Act (1980).
amnesty legislation generally does not preclude prosecution for serious violations
of international humanitarian law.
Unilateral Amnesty Declarations

General declarations of amnesty are just that—general declarations issued by the
authorities in power either during or at the end of the armed conflict. For

instance, in 1994, the President of the Philippines issued a proclamation
whereby rebels and insurgents could apply for amnesty for a variety of crimes
‘including but not limited to’:
Rebellion or insurrection; coup d’etat; conspiracy and proposal to commit rebellion,
insurrection or coup d’etat; disloyalty of public officers or employees; inciting to rebellion
or insurrection; sedition; conspiracy to commit sedition; inciting to sedition; illegal
assembly; illegal association; direct assault; indirect assault; resistance and disobedience
to a person in authority or the agents of such a person; tumults and other disturbances of
public order; unlawful means of publication and unlawful utterances; alarms and scan-
dals; illegal possession of firearms, ammunition or explosives, committed in furtherance
of, incident to, or in connection with the crimes of rebellion or insurrection . . .
[p]rovided, that the amnesty shall not cover crimes against chastity and other crimes
committed for personal ends.
General declarations of amnesty have been issued in the Former Yugoslav
Republic of Macedonia,152 Rwanda,153 and the Philippines.154
Indeed, the need for amnesty provisions as a mechanism to reconcile a nation
following an internal or non-international armed conflict was noted by the
Constitutional Court of Colombia in the context of their constitutional review of
Protocol II.155 The Court specifically highlighted the connection between the
lack of combatant immunity for participants in non-international armed con-
flicts, and the part that an amnesty can play in healing a nation by granting ex post
facto immunity to non-state participants in a non-international armed conflict:
As already stated in this ruling, one of the essential characteristics of prisoner-of-war
status is that prisoners may not be punished simply for having taken up arms and having
participated in hostilities; indeed, if States are at war, the members of their respective
armed forces are considered to have the right to serve as combatants. The party that
captures them may retain them only in order to limit the enemy’s potential to wage war,
152
Statement by the President of the Former Yugoslav Republic of Macedonia, 8 October
2001, reported in ICRC CIHL Study at 4031, para 709.
153
Amnesty Offer by the President of Rwanda, Ruhengeri, 14 March 1991, reported in ICRC
CIHL Study at 4031, paras 711–12.
154
Presidential Proclamation No 10-A; reported in ICRC CIHL Study, Vol II, Pt 2 at 4031,
paras 713–15. It should be noted that many national legislations make provision that no amnesty
will be accorded for acts qualified as crimes against humanity such as inhuman punishment, for-
cible disappearances, summary executions, and acts of genocide. See for instance the Constitution
of Ethiopia, which provides in Art 28(1) that ‘crimes against humanity shall not be subject to
amnesty or pardon by any act government’.
155
As approved by Law 171 of 16 December 1994.
but it may not punish them for having fought. Consequently, as a prisoner-of-war has
not violated humanitarian law, he must be released and repatriated without delay after
the cessation of active hostilities, as stated in Article 118 of the Third Geneva Con-
vention. Any prisoner who has violated humanitarian law should be punished as a war
criminal in the instance of a grave breach, or could be subject to other penalties for other
violations, but he may in no case be punished for having served as a combatant.
It is thus unnecessary for States to grant reciprocal amnesty after the end of an inter-

national war, because prisoners-of-war must be automatically repatriated. In internal
armed conflicts, however those who have taken up arms do not in principle enjoy prisoner
of war status and are consequently subject to penal sanctions imposed by the State, since
they are not legally entitled to fight or to take up arms. In so doing they are guilty of an
offence, such as rebellion or sedition, which is punishable under domestic legislation . . .
In situations such as those of internal conflict, where those who have taken up arms do not in
principle enjoy prisoner-of-war status, it is easy to understand the purpose of a provision
designed to ensure that the authorities in power will grant the broadest possible amnesty for
reasons related to the conflict, once hostilities are over, as this can pave the way towards
national reconciliation.156
The notion that amnesty operates as a path to national reconciliation is some-
thing also noted in the Commentary to Protocol II, which states that the object
of the Article 6(5) amnesty provision ‘is to encourage gestures of reconciliation
which can contribute to re-establishing normal relations in the life of a nation
which has been divided’.157
There is also significant practice evidenced by international organizations,
like the UN, promoting and supporting the granting of amnesty where such
amnesty is warranted. UN declarations and resolutions encouraging the
granting of amnesty have been issued regarding South Africa,158 Angola,159
Croatia,160 Sierra Leone,161 Afghanistan,162 and Kosovo.163 Furthermore, the
156
Ruling No C-225/95, Re: File NoL.A.T.-040, unofficial translation in Sassòli and Bouvier at
1370 (emphasis added); see also The Azanian Peoples Organisation (AZAPO) v The President of the
Republic of South Africa Constitutional Court of South Africa, Case CCT 17/96, 25 July 1996, in
157
Sassòli and Bouvier at 970, esp paras 30–1. AP Commentary at 1402, para 4618.
158
UN SC Res. 190, UN Doc S/5761, 9 June 1964; UN SC Res. 191, UN Doc S/5773, 18
June 1964, UN SC Res. 473, UN Doc S/RES/473, 13 June 1980; and UN SC Res. 581, UN Doc
S/RES/581, 13 February 1986.
159
UN SC Resolutions 1055, UN Doc S/RES/1055, 8 May 1996; and UN SC Res. 1064, UN
Doc S/RES/1064, 11 July 1996.
160
UN SC Res. 1120; see also the statements made by the UNSC President, which urged the
government of Croatia to give full effect to its amnesty law; see UN Doc S/PRST/1997/4* at 2,
and UN Doc S/PRST/1997/15 at 2.
161
UN SC Res. 1315, UN Doc S/RES/1315 (2000), 14 August 2000.
162
UNGAR 46/136, 46 UN GAOR Supp (No 49), UN Doc. A/46/49 (1991), 17 December
1991; UNGAR 47/141, 47 UN GAOR Supp (No 49), UN Doc. A/47/49 (1991), 18 December
1991; UNGAR 48/152, 48 UN GAOR Supp (No 49), UN Doc. A/48/49 (1993), 20 December
1993; and UNGAR 49/207, 49 UN GAOR Supp (No 49), UN Doc. A/49/49 (1994), 23
December 1994.
163
UNGAR 53/164, 53 UN GAOR Supp (No 49), UN Doc. A/RES/53/164 (1999), 25
February 1999.
UN Commission on Human Rights, and the UN Secretary General have also
issued declarations or statements encouraging amnesties, where possible or
reasonable.164
Amnesty and Serious Violations of IHL

The very definition of amnesty would seem to suggest that the pardon of
those in question is total; that no matter the crimes committed, no pros-
ecution for the alleged offences will be pursued. However, such a position
would run counter to one of the central tenets of humanitarian law, that
certain egregious violations of IHL are an offence to all humanity.165 Indeed,
one of the contentious debates in international humanitarian law in recent
years has been the question of amnesty and its place in the Statute of the
ICC. The Rome Statute of the International Criminal Court does not have
any specific provision regarding amnesty. Under Article 53(2)(c), the Pros-
ecutor at the ICC has discretion to forgo pursuing a prosecution if he/she
feels that such prosecution is not in the interests of justice. This provision
must be interpreted in line with the preamble to the ICC Statute, which
specifically notes that the jurisdiction of the ICC is not superior to that of the
States Parties; rather, it operates ‘complementary to national criminal jur-
isdictions’. This wording suggests that the ICC would likely respect a State’s
decision to grant amnesty, even in cases of serious violation of IHL or
international human rights law.
At the same time, however, the whole intent of the ICC Statute is to ensure
that ‘the most serious crimes of concern to the international community as a
whole must not go unpunished and . . . their effective prosecution must be
ensured . . .’, affirming ‘that it is the duty of every State to exercise its criminal
jurisdiction over those responsible for international crimes . . .’. Despite this
seeming contradiction, it must be noted that trend in State practice has been one
of not allowing blanket amnesty provisions. In a report of the UN Secretary-
General on the establishment of the Special Court for Sierra Leone, it was
noted that:
While recognising that amnesty is an accepted legal concept and a gesture of peace and
reconciliation at the end of a civil war or an internal armed conflict, the United Nations
has consistently maintained the position that amnesty cannot be granted in respect of
164
See for instance, the UN Commission on Human Rights Resolution 1996/71, which called
upon the Republika Srpska and the Federation of Bosnia and Herzegovina to adopt amnesty laws
(UN Doc. E/CN.4/1996/71 (1996)).
165
See Cassese, International Criminal Law, where he notes that there is ‘a universal interest in
repressing [international] crimes’, especially grave breaches of the Geneva Convention that amount
to crimes against humanity, as they are ‘particularly odious’ (at 15, 64).
international crimes, such as genocide, crimes against humanity, or other serious viola-
tions of international humanitarian law.166
Of relevance is the debate that surrounds the more recent referral of cases to the
ICC by Uganda. Uganda’s Amnesty Act of 2000 offered blanket amnesty for all
members of the Lord’s Resistance Army, regardless of rank, who voluntarily
surrendered themselves. However, in July of 2005, the ICC issued a number of

arrest warrants for senior LRA commanders for war crimes and crimes against
humanity. The ICC was acting in response to an official referral from Uganda in
2003; the question was raised as to whether Uganda’s Amnesty Act precluded
the operation of jurisdiction by the ICC.
In the debates that emerged from the Uganda case, the general consensus
seems to be that amnesty, whether in the form of legislation or a negotiated
agreement, or else pursuant to the creation of a Truth Commission, cannot be
extended to cover serious violations of IHL and international law. Indeed, a
number of amnesty agreements include specific provision to ensure that serious
violations of international law are not exempted from prosecution, either under
international or domestic law. Such provisions have been found in amnesties in
Guatemala,167 Croatia,168 Colombia,169 and Algeria.170 For example, Article 10
of the 2002 Statute of the Special Court for Sierra Leone states that:
An amnesty granted to any person falling within the jurisdiction of the Special Court in
respect of the crimes referred to in article 2 to 4 of the present Statute [crimes against
humanity, violations of Common Article 3 and Protocol II, other serious violations of
IHL] shall not be a bar to prosecution.
This position is borne out by a number of cases, which affirm that amnesty
provisions may not exclude the operation of domestic or international law in the
prosecution of serious violations of international humanitarian law.171 Indeed,
166
Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone,
UN Doc S/2000/915 (2000) at paras 22–3; see also the questions raised following the issuance of
ICC arrest warrants for senior LRC commanders. Though Uganda enacted its Amnesty Act
(2000), offering blanket amnesty to all LRC members, regardless of rank, the State nonetheless
referred a number of cases to the ICC for investigation and prosecution. There was some concern
that such referral conflicted with the complementary jurisdiction of the Court, especially con-
sidering that, under Art 17, the ICC must defer to national judicial systems, except where the State
is unwilling or unable to genuinely carry out investigations or prosecutions. That Uganda main-
tains a functional judicial system, and that they were willing to punish perpetrators of international
crimes, suggests that the ICC should perhaps not have pursued the matter. Opinion is divided as to
whether the ICC’s actions were in the best interests of justice. See generally Moy, ‘The Inter-
national Criminal Court’s Arrest Warrants and Uganda’s Lord’s Resistance Army: Renewing the
Debate Over Amnesty and Complementarity’, 19 Harvard Human Rights Journal 267 (2006).
167
Excluding amnesty for torture, genocide, and forced disappearances.
168
Excluding amnesty for ‘flagrant violations’ of international law.
169
Excluding amnesty for crimes against humanity.
170
Excluding amnesty for rape, mass murder, and public bombings.
171
See the ICTY in Furundžija (Judgment) at § 155, where the Tribunal stated that national
amnesties could not preclude the operation of international law with regards to jus cogens obligations,
affirming the principle enunciated in the Nuremberg Trials that ‘individuals have international
duties which transcend the national obligations of obedience imposed by the individual State’.
the Special Court for Sierra Leone considered whether the granting of amnesties
under the Lomé Accords prevented the Court from prosecuting Sierra Leonean
rebels for violations of international law:
an international agreement in the nature of a treaty must create rights and obligations
regulated by international law so that a breach of its terms will be a breach determined
under international law which will also provide principle means of enforcement. The

Lomé Agreement created neither rights nor obligations capable of being regulated by
international law. An agreement such as the Lomé Agreement which brings to an end an
internal armed conflict no doubt creates a factual situation of restoration of peace that
the international community acting through the Security Council may take note of.
That, however, will not convert it to an international agreement which creates an obli-
gation enforceable in international, as distinguished from municipal law . . . a peace
agreement which settles an internal armed conflict cannot be ascribed the same status as
one which settles an international armed conflict which, essentially, must be between
two or more warring States.172
Practice in East Timor173 also suggests that there are few situations where
blanket amnesty, even for the most egregious violations of international law, will
be tolerated.174
Amnesty and Transitional Justice

In addition to specific agreements and declarations that grant amnesty following
internal conflict, the late twentieth and early twenty-first century has also seen
the rise of ‘truth and reconciliation’ commissions.175 These commissions are
court-like entities, whereby all persons who have information to impart
regarding the commission of human rights and humanitarian law atrocities and
172
Prosecutor v Kallon and Kamara, Decision on Challenge to Jurisdiction: Lomé Accord
Amnesty, Case Nos. SCSL-2004-15-AR72(E) [Kallon] and Case No SCSL-2004-16-AR72(E)
[Kamara] at para 42. See also the cases Videla in Chile’s Appeal Court, which held that offences
considered to constitute grave breaches are ‘unamenable to amnesty’; and Mengistu, where it was
noted that it is ‘a well established custom and belief that war crimes and crimes against humanity are
not subject to amnesty’ (Mengistu and Others, Ethiopia Special Prosecutor’s Office, Reply submitted
in response to the objection filed by counsel for defendants, 23 May 1995, Conclusion).
173
See UNTAET Regulation 2001/10 on the Establishment of a Commission for Reception, Truth and
Reconciliation in East Timor, UNTAET/REG/2001/10 (2001), in Schedule 1, which states that ‘in no
circumstances will a serious criminal offence be dealt with in a Community Reconciliation Process’.
174
See Majzub, ‘Peace or Justice? Amnesties and the International Criminal Court’, 3 Melb J
Int’l L 247 (2002).
175
For more on truth and reconciliation commissions, see generally Robinson, ‘Serving the
Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’, 14 EJIL
481 (2003); Goldstone, ‘Past Human Rights Violations: Truth Commissions and Amnesties or
Prosecutions’, 51 Northern Ireland Law Quarterly 164 (2000); Villa-Vicencio, ‘Why Perpetrators
Should Not Always Be Prosecuted: Where the International Criminal Court and Truth Com-
missions Meet’, 49 Emory Law Journal 205 (2000); and Landsman, ‘Alternative Responses the
Serious Human Rights Abuses: Of Prosecution and Truth Commissions’, 59 Law & Contemporary
Problems 81 (1996).
violations are encouraged to give testimony. Though these bodies vary in com-
position and constitution, the common factor to all is that both perpetrator and
victim are entitled to tell their stories. Perpetrators are generally given amnesty
from prosecution for their confessed crimes, provided they agree to honestly
participate in the process of ‘truth and reconciliation’.
The intent behind the granting of amnesty, and indeed, the creation of the

commission in general, is the belief that, by public process of reporting and
documenting atrocities and crimes, a State previously divided by conflict, may
seek to reconcile such divisions. By having the atrocities publicly reported and
recorded, rather than concealed by the authorities, the State can attempt to
reconcile the nation. It is also felt that such Commissions are more efficacious
than relying on the judicial system to pursue what may be hundreds of alleged
perpetrators, especially in situations where a protracted and wide-spread civil
conflict has left many of the State’s administrative, judicial and executive organs
seriously depleted, if not destroyed altogether.176
The Commission that existed in South Africa is considered the model,177 but
similar commissions have been, or are planned to be, used in Algeria, Argentina,
Burundi, Chile, the Democratic Republic of Congo, El Salvador, Fiji, Ghana,
Guatemala, Kenya, Liberia, Morocco, Panama, Paraguay, Peru, Sierra Leone,
and Timor-Leste.178 What these Commissions demonstrate is an emerging
trend towards non-judicial and alternate resolutions to internal armed conflicts.
Moreover, the increase in transitional justice measures also indicates a will-
ingness to grant ex post facto combatant immunity to persons who have parti-
cipated in an internal armed conflict without being legally permitted to do, and
that, rather than undermining the legal foundations of the State, such immunity
is often a critical element in post-conflict reconstruction.
Additional UN Guidelines for the Treatment of Prisoners
Finally, note should be made of the body of UN documents relating to the

treatment of persons held in any kind of detention, not just those detained in
176
See generally Trumbull, ‘Giving Amnesties a Second Chance’, 25 Berkeley Journal of Inter-
national Law 283 (2007), at 314–20.
177
See the Promotion of National Unity and Reconciliation Act of 1995.
178
See also the work being done by The International Center for Transitional Justice (ICTJ), an
international NGO, which was founded to assist countries pursuing accountability for past mass
atrocity or human rights abuse. The ICTJ assists in the documenting and acknowledging of vio-
lations through non-judicial means such as truth commissions, through facilitating reconciliation
processes. The Center was involved in setting up or advising truth and reconciliation commissions
in the Democratic Republic of Congo, Timor-Leste, Peru, Ghana, Liberia, Morocco, and Sierra
Leone. See <http://www.ictj.org/en/index.html>.
relation to an armed conflict. These rules provide additional interpretative guid-
ance for the obligations under IHL. These include the:
. Standard Minimum Rules for the Treatment of Prisoners;179
. Basic Principles for the Treatment of Prisoners;180
. Body of Principles for the Protection of All Persons Under Any Form of

Detention or Imprisonment;181
. Convention Against Torture and Other Cruel, Inhuman or Degrading
Punishment;182
. Principles of Medical Ethics Relevant to the Role of Health Personnel,
Particularly Physicians, in the Protection of Prisoners and Detainees
Against Torture and Other Cruel, Inhuman or Degrading Treatment and
Punishment;183
. Safeguards Guaranteeing Protection of the Rights of Those Facing the
Death Penalty;184
. Code of Conduct for Law Enforcement Officials;185
. United Nations Standard Minimum Rules for Non-Custodial
Measures;186
. Declaration of Basic Principles of Justice for Victims of Crime and Abuse
of Power;187
. Basic Principles on the Independence of the Judiciary;188
. Basic Principles on the Role of Lawyers;189
179
The Rules were approved by ECOSOC in Resolution 663 C (XXIV ) of 31 July 1957, thus
becoming an officially endorsed set of UN minimum standards. However, it would take some years
before the Rules were properly acknowledged by the General Assembly in 1971, in Resolution
2858 (XXVI) which called upon Member States to implement the Rules in the administration of
their domestic penal and correctional institutions and that consideration should be given to
incorporating the Rules into domestic legislation. In 1973, the General Assembly recommended
that Member States make all efforts to implement the Rules in both the administration of facilities
and the creation of domestic legislation (Resolution 3144 (XXVIII)). The Rules were reaffirmed by
ECOSOC in Resolution 2076 (LXII) of 13 May 1977.
180
Adopted and proclaimed by General Assembly resolution 45/111 of 14 December 1990.
181
Adopted by General Assembly resolution 43/173 of 9 December 1988.
182
Adopted and opened for signature, ratification and accession by General Assembly resolution
39/46 of 10 December 1984; entry into force 26 June 1987, in accordance with Art 27(1).
183
184
Approved by Economic and Social Council resolution 1984/50 of 25 May 1984.
185
186
Also known as the Tokyo Rules; adopted by General Assembly resolution 45/110 of 14
187
December 1990. Adopted by General Assembly resolution 40/34 of 29 November 1985.
188
Adopted by the Seventh United Nations Congress on the Prevention of Crime and the
Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by
General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.
189
Adopted by the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.
. Guidelines on the Role of Prosecutors;190
. Principles on the Effective Prevention and Investigation of Extra-Legal,
Arbitrary and Summary Executions;191 and
. Basic Principles and Guidelines on the Right to a Remedy and
Reparation.192

Together, these documents form a comprehensive set of guidelines regarding
treatment of persons in detention, with a specific emphasis on conditions of
captivity and ensuring that fundamental judicial guarantees are observed.
Specific reference should be made to the Standard Minimum Rules, which,
while not binding of themselves, do reflect recognized binding customary obli-
gations under international law, such as the prohibition on cruel, inhuman, or
degrading punishment. These rules are accepted by the UN as ‘a body of doc-
trine representing as a whole, the minimum conditions which are accepted as
suitable by the United Nations in the management, custody and treatment of
offenders, and explicitly called upon the world’s governments to give favourable
consideration to the adoption of the Rules and their application in the admin-
istration of penal institutions’.193 The 94 Rules cover what have come to be
considered the basic minimum requirements for persons in detention.194 Given
their general acceptance, the Rules can be used as an interpretative aid in
determining whether detention conditions are deemed to violate the prohibition
on cruel, inhuman or degrading treatment or punishment.195 Indeed, this
approach can be seen in the jurisprudence of the European Commission on
Human Rights (ECiHR).196
The Fourth United Nations Crimes Congress, held in 1970, examined
nation-by-nation implementation of the Standard Minimum Rules for the
Treatment of Prisoners. A survey of Member States found the Rules had con-
tributed to advancing basic human rights for millions of prisoners, with 15 of
the 43 responding States claiming that the Rules had played an influential role in
190
Adopted by the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.
191
Recommended by Economic and Social Council resolution 1989/65 of 24 May 1989.
192
Adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005.
193
Skoler, ‘World Implementation of the United Nations Standard Minimum Rules for
Treatment of Prisoners’, 10 Journal of International Law & Economics 453 (1975) at 454–5.
194
Skoler, ‘World Implementation of the United Nations Standard Minimum Rules for
Treatment of Prisoners’ at 455.
195
See Rodley, The Treatment of Prisoners Under International Law: ‘serious non-compliance
with some rules or widespread non-compliance with some other may well result in a level of ill-
treatment sufficient to constitute violation of the general rule [against cruel, inhuman or degrading
treatment and punishment]’ (2nd edn, Clarendon, Oxford, 1999 at 281).
196
The ECiHR made considerable use of the Standard Minimum Rules in their determination
in the Greek case, which ‘constituted the first systematic application of the international standard to
conditions of detention.’ Rodley, Treatment of Prisoners at 282. See also ‘The Greek Case’, 12
Yearbook of the European Convention on Human Rights 468 (1969).
the drafting of national legislation. At the Ninth Congress, held in 1995, it was
found that the majority of Member States implemented or applied the Standard
Minimum Rules to ‘a large extent’.197 By 2001, surveys showed that the prin-
ciples regarding the role of lawyers and the role of prosecutors were also widely
accepted, recognized, or implemented.198
What these guidelines provide is additional assistance where the existing law is

piecemeal or vague. The Standard Minimum Rules (SMR), and the European
counterpart, the European Prison Rules, provide more detailed provision
regarding conditions of captivity, relations between detainees and authorities,
contact with the exterior, and discipline within detention facilities. For instance,
CA3 makes no provision for the conditions of detention, beyond simply stating
that those hors de combat are to be ‘humanely treated’. APII goes into more
detail, but provision is still limited to the general guidelines of detainees being
‘provided with food and drinking water and . . . afforded safeguards as regards
health and hygiene and protection against the rigours of the climate’.
However, in the Standard Minimum Rules, the rules regarding detention
facilities are far more detailed. For instance, under Rule 10, ‘all accommodation
provided for the use of prisoners and in particular all sleeping accommodation
shall meet all requirements of health, due regards being paid to climatic con-
ditions and particularly to cubic content of air, minimum floor space, lighting,
heating and ventilation.’ In addition, under Rule 12, ‘the sanitary installations
shall be adequate to enable every prisoner to comply with the needs of nature
when necessary and in a clean and decent manner.’ Finally, additional provision
regarding sanitary installations is contained in Rule 13, which determines that
‘adequate bathing and shower installations shall be provided so that every pris-
oner may be enabled and required to have a bath or shower, at a temperature
suitable to the climate, as frequently as necessary for general hygiene according
to season and geographical region, but at least once a week in a temperate
climate.’ These rules are replicated in Rules 18–19 of the European Prison
Rules.199
197
See generally UN Doc A/51/327, Report of the Secretary-General, regarding Crime Pre-
vention and Criminal Justice: Progress Made in the Implementation of General Assembly Reso-
lutions 50/145 and 50/146. This widespread acceptance was seen also with the UN Rules and
Declarations comprising the Code of Conduct for Law Enforcement Officials, together with the
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Basic Principles
on the Independence of the Judiciary, Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power, and Safeguards Guaranteeing Protection of the Rights of Those Facing
198
the Death Penalty. UN Doc E/CN.l5/2001/9.
199
See also Art 6 of the 1979 Code of Conduct for Law Enforcement Officials which provides
that ‘law enforcement officials shall ensure the full protection of the health of persons in their
custody and, in particular, shall take immediate action to secure medical attention whenever
required’ and Paragraph 9 of the 1990 Basic Principles for the Treatment of Prisoners which
provides that ‘prisoners shall have access to the health services available in the country without
discrimination on the grounds of their legal situation.’
Similar detail is found in the rules regarding prisoner diet, such as in Rule 20
of the Standard Minimum Rules, which determines that every prisoner ‘shall be
provided by the administration at the usual hours with food of nutritional value
adequate for health and strength, of wholesome quality and well prepared and
served’ and that ‘drinking water shall be available to every prisoner whenever he
needs.’ Similar provision is laid out in Rule 22 of the European Rules, which

determines that ‘prisoners shall be provided with a nutritious diet that takes into
account their age, health, physical condition, religion, culture and the nature of
their work.’ The rules go on to specify that minimum energy and protein con-
tent shall be prescribed by law, and that medical diets should be available, if
necessary.
In rules on discipline, intellectual and physical activities,200 contact with the
exterior,201 relations with prison authorities, and permissible prisoner labour,202
the Standard Minimum Rules go into considerably more detail than the rules
specific to non-international armed conflict. As such, they serve as valuable
adjuncts to the more spartan obligations of CA3 and APII in ensuring a com-
prehensive set of rules exists to protect persons deprived of their liberty.
Conclusions
As this chapter has demonstrated, the essential content of a considerable number

of the obligations in the POW Convention is entirely reflected in the content
and accepted interpretations of CA3 and APII. The scope of these obligations is
usually interchangeable, in that the definition and interpretation of the obliga-
tions does not change according to whether it is found in APII or GCIII.
Admittedly, there are noticeable gaps in the law relating to non-international
armed conflict, as regards the treatment of POWs especially. Neither APII nor
CA3 make any provision regarding the recording of the personal details of
detainees at commencement of captivity, a requirement of considerable import-
ance to the elimination of the practice of unacknowledged detention and
‘disappearances’.203 In addition, the treaty law of non-international armed
conflict contains little detail regarding some conditions of captivity, such as
access to educational and recreational activities, contact with the exterior, and
questions of in-camp discipline. Furthermore, some specific judicial guarantees,
200 201
See Rules 21, 40, and 77 of the SMR. Rule 37 of the SMR.
202
Rules 71–6 of the SMR.
203
The best-known of the campaigns of ‘enforced disappearance’ are those of Operation Con-
dor, the systematic programme of assassinations and disappearances perpetrated by the military
dictatorships of Chile, Argentina, Uruguay, Paraguay, Ecuador, Bolivia, Brazil, and Perú, during
the 1970s and 1980s. For a detailed analysis of Operation Condor, see Dinges, The Condor Years:
How Pinochet and his Allies Brought Terrorism to Three Continents (New Press, New York, 2004)
and Zoglin, ‘Paraguay’s Archive of Terror: International Cooperation and Operation Condor’, 32
University of Miami Inter-American Law Review 57 (2001).
such as the right to public trial, the right to examine witnesses, and the right to
assistance from an interpreter, are not explicitly contained in APII or CA3.
However, it is possible that these gaps may be filled in respect of detainees in
non-international armed conflicts by recourse to other sources of international
legal rights and obligations, in this instance, the law of international human
rights. To that end, the next chapter examines the role of international human

rights law in bridging the gaps between the law of international and non-
international armed conflicts.

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3

Existing Protections for Participants in

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A Prefatory Comment on Detainee Protections under the 1949

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General Guarantees for Persons Deprived of Their Liberty

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Humane Treatment (Article 13, GCIII)

Humane treatment under Common Article 3 and Protocol II

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Prohibition on Threats to the Life or Health of the POW

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Medical and Scientific Experimentation and Mutilation

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Protection and Respect for Detainees’ Person and Honour

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Prohibition on Corporal Punishment (Article 13, GCIII)

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Non-Discrimination (Article 16, GCIII)

Respect for Religious Practices (Articles 34–38, GCIII)

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Special Protection for Women (Articles 14 and 25, GCIII)

Provisions Regarding Conditions of Captivity

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Safe and Hygienic Detention Facilities

Safe Location of Camps (Article 23, GCIII)

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Location in Climate not Damaging to Health (Article 22, GCIII)

Provision of Quarters, Food and Clothing (Articles 25–27, GCIII)

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Healthful and Hygienic Camps (Articles 29–31, GCIII)

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Working Conditions (Articles 49–57, GCIII)

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Access by the ICRC

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Judicial Guarantees for Detainees in Internal Armed Conflicts

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Judicial Guarantees in Common Article 3 and Protocol II

Trial by an Independent, Impartial and Regularly Constituted

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Individual Criminal Responsibility and the Prohibition on

The Principle of Legality—Nullum Crimen Sine Lege

121 122 123

Right to be Informed of the Charges (Articles 104–5, GCIII)

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Prohibition on Compelling the Accused to Testify or Confess

Rights and Means of Defence (Article 105, GCIII)

Right to Fair Trial through Due Process (Article 105, GCIII)

Right of Appeal (Article 106, GCIII)