Protection of the Prisoners

of War
Definition of Prisoners of War (POW)
• Article 4 of the Third Geneva Convention Relative to the Treatment of
Prisoners of War, 1949 defines the people who are entitled to the
prisoner of war status in case of their captivity. It is now
supplemented by articles 43 & 44 of Protocol I Additional to the
Geneva Conventions of 12 August 1949.
• The recognition as a POW under art. 4 depends on two factors:
• To belong to one of the categories under art. 4 (A) or those who shall
likewise be treated as POW under art. 4(8) &
• To have fallen into the power of the enemy.
Cont.
• Art. 4 A(l) covers members of the armed forces of a Party to the conflict as well as
members of militias or volunteers corps forming part of such armed forces.
• Art 4 A(2) covers members of other militias and members of other volunteer
corps, including those of organised resistance movements, belonging to a party to
the conflict and operating in or outside their own territory, even if this territory is
occupied, provided that such militias or volunteers corps, including such organised
resistance movements, fulfill the following conditions:
• that of being commanded by a person responsibility for his subordinates;
• that of having a fixed distinctive sign recognizable at a distance;
• that of carrying arms openly;
• that of conducting their operations in accordance with the laws and customs of
war.
Cont.
• Art. 4 A(3) covers members of regular armed forces who profess allegiance to
a government or an authority not recognised by the Detaining Power.
• Art. 4 A(4) covers persons who accompany the armed forces without actually
being members thereof, such as civilian members of military aircraft crews,
war correspondents, supply contractors, members of labour units, or of
services responsible for the welfare of the armed forces, provided they have
received authorization to this effect and be the bearers of an identity card.
• Art. 4 A(5) covers members of crews, including masters, pilots and
apprentices, of the merchants marine and the crews of civil aircrafts of the
Parties to the conflict, who do not benefit by more favourable treatment
under any other provisions of international law.
Cont.
• Art. 4 A(6) covers the inhabitants of a non-occupied territory, who on
the approach of the enemy spontaneously take up arms to resist the
invading forces without having had time to form themselves into
regular armed units, provided they carry arms openly and respect the
laws and customs of war.
• Art. 4 B(l) & (2) cover members of the armed forces who have
returned to civilian life and who, for security reasons, have been
interned by the occupying power in occupied territory, should be
granted POW status. Furthermore, a Neutral Power which interns
military personnel who have sought refuge on its territory should
grant them POW if not more favourable treatment.
Cont.
• The list of persons given the criteria for POW status and the mechanisms for asserting such status in art. 4 of
the Convention have now been broadened by Protocol I of 1977 so as to encompass more combatants. Arts.
43 & 44 of Additional Protocol I list the new requirements for combatant and POW status and which have a
bearing on guemlla warfare though none of them mentions 'guerrilla' specifically.
• Reading these two articles together it is apparent that guerrilla forces must fulfil five conditions, four
collectively and one individually, to enable them to claim POW status, they must collectively:
• i) be a party to a conflict;
• ii) be organised;
• iii) be under command responsible to the party for the conduct of its subordinate;
• iv) be subject to an internal disciplinary system which shall enforce compliance with the rules of
international law applicable in armed conflict, and
• a combatant must, as an individual: v) carry arms openly –
• during each military engagement, and
• during such time as he is visible to the adversary while he is engaged in a military deployment preceding the
launching of an attack in which he is to participate.
Cont.
• In Military Prosecutor v. Omar Mahmud Kassen & others (1971) the question was put before the
Israeli Military Tribunal whether informed members of the organisation of Popular Front for
Liberation of Palestine (PFLP) are entitled to POW treatment. The Court found that PFLP did not
belong to any party to the conflict in as much as no government with which the state of Israel was at
war, accepted responsibility for the acts of PFLP and so its members were not entitled to POW status.
• Art. 5 para. 2 of the Third Geneva Convention and Art. 45 (1) of the Protocol I deal with those
persons whose prisoner of war status is in doubt.
• Art. 5 para. 2 says 'should any doubt arise as to whether persons having committed a belligerent act
and having fallen into the hands of the enemy belong to any of the categories enumerated in art. 4,
each person, enjoy the protection of the present convention until such time as their status has been
determined by a competent tribunal'.
• Art. 45 (1) of Additional Protocol I says: 'A person who takes part in hostilities and falls into the
power of an adverse party shall be presumed to be a prisoner of war and shall be protected by Third
Convention ... and this protocol until such time as his status has been determined by a competent
tribunal'.
Cont.
• In Public Prosecutor v. Oie Hee Koi (1968) the Federal Court of
Malaysia held that the Convention did not extent the protection given
to prisoners of war to nationals of the detaining power nor to persons
who, although not nationals, owed a duty of allegiance to that power.
Basic Protection
• Basic notions of Protection
• Captivity starts on the combatant falling into enemy hands. Captivity
as a result of war should not be considered as of a punitive or
infamous character, its sole objective is to make the combatant
incapable of doing harm and to prevent him from re­engaging in
hostilities.
• During their captivity POWs remain members of their armed forces
but are subject to the laws, regulations and general orders in force
within the armed forces of the Detaining Power, without, however,
being in duty bound to the latter (Detaining Power).
Humane Treatment
• Prisoners of war must at all times be humanely treated. They are entitled to respect for
their person, both physical and moral. The following acts are contrary to respect for the
physical person:
• any unlawful act or omission causing death or seriously endangering the health of a POW;
• physical mutilations, medical or scientific experiments which are not justified by the
patient's treatment, removal of tissue, or organs for transplantation; acts of violence on
the part of civilians or military persons;
• prolonged questioning whether or not accompanied by acts of brutality with the aim of
extracting information, continual harassment; omission of medical care to the wounded
and sick;
• prolonged deprivation of sanitary facilities of physical, intellectual and recreational
pursuits;
• inadequate conditions of food, quarter and clothing extended over any length of time;
Cont.
• keeping prisoners in a danger zone; making them do labour of a dangerous nature or one
which does not take into account the prisoners' physical aptitude or their professional
qualifications.
• Respect for prisoners means respect for their person and honour and protection against
public curiosity.
• Humiliating and degrading treatment is therefore banned, as is the internment of
prisoners in penitentiaries. Degrading and humiliating labour or labour directly connected
with war operations.
• Lack of separate quarters for women and men,
• Insults uttered against a prisoner's person, flag, country, religion or beliefs,
• Forcing prisoners to wear their enemy's uniform, the prohibition of wearing badges of
rank and decoration and the confiscation of such insignia refusal to reply to prisoners'
salutes.
Reprisals & Responsibility

• Measures of reprisal against POW are prohibited. Reprisals are

unlawful measures resorted to by a belligerent to counter and
eliminate unlawful acts committed by an adversary.
• The Detaining Power is responsible for the treatment given by its
agents to POW, irrespective of the individual responsibilities that may
exist. Any breaches of the provisions of the Convention involve the
responsibility of the violators of those provisions and must be
repressed. Persons having committed breaches may be brought
before the courts of the High Contracting Party concerned.
Grave breaches
• Grave breaches against POW shall be those involving any of the following acts:
• - willful killing;
• - torture or inhumane treatment;
• - including biological experiments;
• - willfully causing great suffering or serious injury to body or
• - health; compelling a POW to serve in the forces of the hostile power, or
• - willfully depriving a POW of the rights of fair and regular trial prescribed in the
Convention;
• - unjustified delay in the repatriation of POW, practices of apartheid and
• - other inhuman and degrading practices involving outrage upon personal dignity based on
racial discrimination.
• Art. 130 Geneva Convention III, Arts. 11 & 85, Additional Protocol I
Maintenance & Equality of Treatment
• The Power detaining POW shall be bound to maintain them free of charge - their quarters, clothing, food
and medical attention.
• Taking into consideration rank and sex, all prisoners shall be treated alike. Any adverse distinction based
upon race, colour, language or belief, political or other opinion, national or social origin, wealth, birth or
other status, or on any other similar criteria shall be prohibited.
• The Convention itself provides for privileged treatment for officers:
• exemption from work, higher pay.
• For sick prisoners:
• appropriate diet,
• isolation wards, early repatriation.
• For women:
• Separate dormitories, and conveniences.
• The prisoner's age and professional qualifications may also be taken into consideration for any
privileged treatment.
Discipline & Disciplinary Punishments

• POW shall be subject to the discipline in force in the armed forces of the Detaining Power,
order must be given in a language which they understand. The use of weapons against
POW, especially against those who are escaping or attempting to escape shall constitute an
extreme measure, which shall always be preceded by appropriate warnings.
• The disciplinary punishments applicable to POW are:
• a fine which shall not exceed 50 per cent of the advance of pay and working pay,
• discontinuance of privileges,
• fatigue duties not exceeding two hours daily and
• confinement.
• The duration of any disciplinary punishment shall not exceed thirty days. Fatigue duties
shall not be applied to officers, A period of at least 3 days shall elapse between two
successive punishments, A POW undergoing confinement shall continue to enjoy the
benefits of the convention,
Judicial Proceedings

• A POW shall be tried only by a military court offering guarantees of independence and impartiality
and affording the accused the rights and means of defence provided for by the convention,
• A POW shall, in particular be entitled to -
• choose counsel for this defence
• to call witnesses &
• to obtain the services of a competent interpreter.'
• The representatives of the Protecting Power shall be entitled to attend the trial and give assistance
to the accused, who shall have, in the same manner as the members of the armed forces of the
Detaining Power, the right of appeal or petition If the death penalty is pronounced on a POW the
sentence shall not be executed before the expiration of a period of six months, Prisoners prosecuted
and convicted for acts committed prior to capture shall retain the benefits of the Convention; they
may not be punished more than once for the same act and may not be sentenced to any penalties
except those provided for in respect of members of the armed forces of the Detaining Power, No
coercion may be exerted on a POW in order to induce him to admit himself guilty of the act of which
he is accused.
Non-renunciation of Rights

• POW may not renounce the rights secured to them by the 1949
Convention and the 1977 Additional Protocol. Any renunciation of
such rights, even if made voluntarily by a prisoner, shall be void and
no special agreement concluded by the Detaining Power may deprive
him of his rights.
Beginning of Captivity

•
Questioning
• When questioned, a POW is bound to give only four items of
information:
• his surname and first name,
• rank,
• date of birth and
• army or equivalent number.
• Prisoners who refuse to answer may not be threatened, insulted, or
exposed to any unpleasant or disadvantageous treatment.
Personal Property

• Prisoners may keep effects and articles of personal use, such as those serving as clothing and protection and
for eating. Examples of articles of clothing are:
• all garments, underwear, footwear (shoes and boots), belt, overcoat. knapsack, for eating: billycan, water-
bottle,
• eating utensils, rations & haversack for personal protection: helmet, gas-mask, groundsheet, packet of
dressings, identity disc.
• other personal objects: toilet articles, watch, wallet, keys, paper-book, pencil, fountain pen, pocket torch, eye-
glasses, badges of rank, decorations,
• sums of money and articles of value may be taken away but a receipt must be given for them, and such objects
and sums of money must be returned at the termination of captivity.
• Objects of a personal and sentimental value, but of small commercial value such as:
• photographs, wedding rigs, medals may not be taken from POW.
• On the other hand, arms, munitions, means of transport (horses, vehicles, motors), portable wireless
equipment, optical instruments and military documents, such as maps, plans, written orders etc. may be
confiscated.
Evacuation & Capture Cards & Official Information Bureaux

• Prisoners captured in a fighting zone shall be evacuated as soon as possible

to camps situated in an area for enough for them to be out of danger.
• As soon as possible after capture, and not more than one week after
arrival at a camp, every prisoner shall be given the possibility of sending a
card to his family and also to the Central Agency, informing them of his
capture, state of health, if possible address,
• The parties to the conflict and the neutral states who may have accepted
to take in members of the belligerent armies shall institute, upon the
outbreak of the conflict, an official Information Bureau for prisoners of war
who are in their power and in respect of dead combatants whose remains
have been collected.
Central Agency & Relief Organisations

• Under the Convention, a Central Prisoners of War Information Agency

shall be created in a neutral country by the ICRC. The Agency, which is
known as the central Tracing Agency, is in Geneva and operates
whenever there is a conflict. The functions of the Agency are to collect
all information it may obtain through official or private channels
respecting POW, and to transmit it as rapidly as possible to the country
of origin. It endeavours to reply to enquiries send it by the families of
missing combatants.
•

• All facilities shall be granted to religious organisations and relief societies

wishing to assist prisoners. Both material and spiritual relief may be
offered.
Internment of POW

Places of internment
• POW may be interned in camps which are fenced in, or they may be placed in other camps
or establishments with an obligation not to go beyond certain bounds. They may be
interned only in premises located on land, in a place, where there are no extremes of
climate and in reasonable conditions of safety.
Quarters
• Prisoners shall be quartered under favourable conditions and shall in no case be prejudicial
to their health Provision should be made for adequate surface and cubic space as well as
for heating, lighting, precautions against fire hazard and protection from dampness,
Food
• Food rations shall be sufficient in quantity, quality and variety to keep prisoners in good
health, account shall be taken of their habitual diet, prisoners who work shall be issued with
appropriate rations. Collective disciplinary measures affecting food are prohibited,
Cont.
Clothing
• Clothes, underwear and footwear shall be supplied in sufficient quantities by the
Detaining Power, who shall make allowance for the climate and for the type of work the
prisoners may be made to do.
Hygiene and Medical Attention
• All sanitary measures shall be taken to ensure the cleanliness and healthfulness of
camps. Prisoners shall have for their use conveniences maintained in good and clean
condition and suitable premises where they can wash themselves, take showers and do
their personal laundry,
• Every camp shall have an infirmary where prisoners may receive medical attention.
Medical inspections shall be made at least once a month: their purpose shall be in
particular, to supervise the general state of health, nutrition and cleanliness of
prisoners and to detect contagious diseases,
Cont.
Medical Personnel and Chaplains
• Members of the medical personnel and Chaplains shall be granted a significant amount of liberty
and shall have at their disposal the necessary means of transport for visiting prisoners, they shall
be allowed special facilities for correspondence and shall not be compelled to carry out work.
Religious Duties
• Prisoners shall enjoy complete latitude in the exercise of their religious duties, on condition that
they comply with the disciplinary routine prescribed by the detaining authorities. Premises shall
be provided for religious services,
Recreation, Study, Sports and Games
• While respecting the individual preferences of every prisoner, the Detaining Power shall
encourage the practice of intellectual, educational and recreative pursuits and sports and games
amongst prisoners. Adequate premises and equipment shall be provided, (library, sports,
equipment, reading rooms, playing fields etc
Cont.

Administration
• Every camp shall be put under the immediate authority of a
responsible commissioned officer belonging to the regular armed
forces. Such officer shall have in his possession a copy of the
convention and of the Protocol and shall ensure that their provisions
are applied. In every camp the text of the Convention and of the
Additional Protocol shall be posted in the prisoner's own language.
Similarly, regulations, orders, notices and publications of every kind
concerning the prisoners shall be posted and issued to them in a
language which they understand.
Cont.
Transfers
• The transfer of Prisoners from one camp to another shall always be effected humanely. The transfer shall
not be prejudicial to their health, nor shall it be such as to increase the difficulty of their repatriation.
Labour
• The Detaining Power may utilize the labour of prisoners, taking, into account their age, sex, physical
aptitude and professional qualifications officer & shall not be compelled to work, but they may ask for
suitable work to be given them.
Unauthorised Work
• Labour imposed upon prisoners shall not be directly related to military operations. Furthermore, no
prisoner may be employed on tasks which -
• - he is incapable of carrying out, or
• - on humiliating labour, or
• - useless or
• - be a volunteer, on labour which is of an unhealthy or dangerous nature.
Cont.
Working Conditions
• Prisoners may be granted suitable working conditions and shall receive
adequate working pay. The duration of the daily labour of prisoners shall
never be excessive. National legislation concerning the protection of labour
and safety of workers shall be applied.
• Prisoners who sustains accidents in connection with work shall receive all
necessary care and a medical certificate shall be issued to them.
Financial Resources
• Prisoners may be authorised to have in their possession a sum of money in
cash but the authorities may set a limit to the maximum amount each one
may hold.
Cont.
Relations with the Exterior
• Prisoners shall be allowed to send and receive mail. Correspondence may be limited two
letters and four cards monthly sent by each prisoner. As a general rule, correspondence of
prisoners shall be in their native language. Facilities shall be provided to prisoners, such as
permission to consult a lawyer, for the preparation, execution and transmission of legal
documents, for example, powers of attorney and wills.
Relief
• Prisoners shall be permitted to receive individual and collective relief parcels Relief may
consist of food, clothing, medical supplies, articles of religious, educational or recreational
character, books, musical instruments, sports gear and so forth.
Exemption from Postal and Transport Charges
• Mail and parcels to POW shall be exempt from postal charges. This exemption applies to
letters and 'declared value' parcels weighing up to 5 kg.
Cont.
Censorship and Examination
• Relief consignments to POW may be examined but this shall not expose the goods contained
in the parcels to deterioration, the examination shall be done in the presence of the
addressee and delivery to him shall not be unduly delayed.
Prohibition of Correspondence
• Any prohibition of correspondence ordered by parties to the conflict, either for military or
political reasons, shall be only temporary and its duration shall be as short as possible.
Complaint and Requests
• POW shall have the right to make known to the military authorities in whose power they are
and to the Protecting Power's representatives their requests and complaints concerning
conditions of captivity to which they are subjected. Such complaints and requests may be
submitted in writing or by word of mouth to the officer in charge of the camp or to his
superiors.
Prisoners of War Representatives

• In all places where there are prisoners of war, the prisoners freely elect by secret ballot, every six months,
representatives f their own nationality, language and customs. Every representative elected must be
approved by the Detaining Power. In camps for officers, the senior officer among the prisoners shall be
recognised as the prisoner's representative.
• in particular they shall deal with administrative questions such as - requests for family news,
• the drawing up and forwarding of official documents, the forwarding of wills, complaints and requests
• management of the canteen
• taking possession, storage and distribution of collective relief
• transport of prisoners' community property in the event of transfer
• checking of prisoners' accounts
• taking charge of parcels and money remittances intended for POW undergoing confinement as a
disciplinary punishment
• receipt of notification of judicial proceedings against POW
• proposal of wounded and sick POW for examination by mixed medical commissions
End of Captivity

Escape
• It can happen that captivity is brought to an end by successful escape. Escape is
considered as successful if a prisoner has rejoined his own army or that of an allied
power.
• Art. 91(1), ibid
• Prisoners who have made good their escape in any of these ways and who are
captured again shall not be liable to any punishment for their previous escape.
• A POW who attempts to escape and is recaptured before making good his escape
shall be liable only to disciplinary punishment.
Repatriation during Hostilities
• Seriously wounded and sick prisoners shall be repatriated as soon as they are fit to
travel. Other wounded and sick prisoners may be hospitalized in a neutral country.
Cont.
Repatriation after the Cessation of Active Hostilities
• POW shall be released and repatriated without delay after the cessation of active hostilities
any unwarranted delay in repatriation shall be deemed a grave breach of the convention and
the Protocol.
Deaths
• In the event of the death of a POW the body shall be medically examined to confirm death
and enable to be made on the cause of death and where necessary, establish identity.
• A death certificate shall be drawn up with all required information for identification of the
deceased and showing the date and place of death, the cause of death, the date and place of
burial and all particulars necessary to identify the grave Bodies shall be buried or cremated
on account of the religion of the deceased, or in accordance with his expressed wish.
• Every death or serious injury of a prisoner caused by a sentry, other prisoner or any other
person shall be immediately followed by an official inquiry