DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

TITLE OF THE PROJECT

PRISONERS OF WAR –SAFEGUARDS AND HUMANITARIAN GROUNDS

SUBJECT

PUBLIC INTERNATIONAL LAW

NAME OF THE FACULTY

VARSHITA MADAM

Name of the Candidates U.UPENDRA,

Roll No. 2016112

Semester V

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 ACKNOWLEDGEMENT

I would sincerely like to put forward my heartfelt appreciation to our respected professor,
Varshita madam for giving me a golden opportunity to take up this project. I have tried my best
to collect information about the project in various possible ways to depict clear picture about the
given project topic.

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 RESEARCH METHODOLOGY

This project is purely Doctrinal and based on primary and secondary sources such as websites,
books, journals and internet sources. The referencing style followed in this project is BLUE
BOOK 19th Edition's format of citation. This Research process deals with collecting and
analyzing information to answer questions. The Research is purely descriptive in its boundaries
of the topic

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 CONTENTS

Abstract………………………………………………………………….5

Introduction………………………………………………………………6

PRISONER OF WAR DEFINED…………………………………………………….7

RIGHTS OF A PRISONER OF WAR………………………………….……….8 TO 9

ORGANIZATIONS RELATED TO PRISONERS OF WAR………………………10

CONCLUSION………………………………………………………………..……11

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 ABSTRACT

PRISONERS OF WAR –SAFEGUARDS AND HUMANITARIAN GROUNDS

Prisoner of war means any person captured or interned by a belligerent power during war. In the
strictest sense it is applied only to members of regularly organized armed forces, but by broader
definition it has also included guerrillas, civilians who take up arms against an enemy openly, or
non-combatants associated with a military force.

Article 4 of the Third Geneva Convention which defines the term also clearly sets out those who
are categorically recognized as prisoners of war:

“1. Members of the armed forces of a Party to the conflict as well as members of militias or
volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized
resistance movements, belonging to a Party to the conflict and operating in or outside their own
territory, even if this territory is occupied, provided that such militias or volunteer corps,
including such organized resistance movements, fulfil the following conditions: (a) that of being
commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive
sign recognizable at a distance; (c) that of carrying arms openly; and (d) that of conducting their
operations in accordance with the laws and customs of war.”

After going through the above definitions a safe conclusion can be drawn that war is a state of
restlessness between two or more nations or armed forces that forces the governments of the
participating nations to use force against each other and hence allowing the victor state to impose
such conditions as it deems suitable. Moreover, prisoners of war are a direct outcome of the war
that constitutes between different nations or groups.

Further the rights and safeguards of prisoners of war will be discussed in detail in the body of the
project.

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INTRODUCTION

Although combatants and other persons taking a direct part in hostilities are military objective
and may be attacked, the moment such persons surrender or are rendered hors de combat, they
become entitled to protection. That protection is provided for in Common Article 3 and the First
and Third Geneva Conventions (GC) relating to the treatment of the „wounded, sick and
shipwrecked and prisoners of war (POW) respectively; supplemented (for international conflicts)
by Additional Protocol I. These conventions are binding as treaty law, but the key provisions are
in any event customary in nature.

Humanitarian treatment of prisoners of war was not emphasized until the second half of the
nineteenth century. The Hague Regulations did not prevent many of the hardships that prisoners
suffered during World War I; they did provide an enlightened basis for regulation. Besides the
failure to anticipate the problems that arose in World War I, the chief defect of the regulations
were a lack of specificity and the absence of any enforcement procedures.

After the First World War, a conference at Geneva adopted new, more elaborate rules. Like the
prior rules, the new rules did not anticipate the new modes of warfare adopted in the Would War
that followed their acceptance.1

PRISONERS OF WAR DEFINED

The Third Geneva Convention of 1949 is concerned with prisoners of war, and consists of a
comprehensive code centered upon the requirement of humane treatment in all circumstances.

The definition of prisoners of war in GC III, Article 4(A) is of particular importance since it has
been regarded as the elaboration of combatant status. It covers members of the armed forces of a
party to the conflict, as well as irregulars such as members of militia or volunteer corps that fight
alongside a party to the conflict, provided they satisfy four conditions: being commanded by a
person responsible for his subordinates; having a fixed distinctive sign recognizable at a
distance; carrying arms openly; and conducting operations in accordance with the laws and
customs of war.

Under International Humanitarian Law (IHL), „combatant’s privilege entails three important
consequences.
1
INTERNATIONAL HUMANITARIAN LAW AND PRISONERS OF WAR by Qudus A. Mumuney

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First, the privileged combatant is allowed to conduct hostilities and as such cannot be prosecuted
for bearing arms or attacking enemy targets, unless the conduct amounts to a war crime.

Second, he or she is a legitimate target to the opposing forces.

Third, in the event of capture, such combatants are afforded POW status. The group of persons
entitled to combatant’s privilege, and in the event of capture to prisoner of war status, is defined
in GC III, Article 4(A). These include members of the armed forces of another party, as well as
irregulars such as members of militia or volunteer corps that fight alongside a party to the
conflict, provided they satisfy four conditions: being „commanded by a person responsible for
his subordinates; having a fixed distinctive sign recognizable at a distance; carrying arms openly;
and conducting operations in accordance with the laws and customs of war.

POW status is therefore automatically due to persons who fought in the armed forces of a state.
The fact that the government was not the recognized representative of the state is irrelevant. It
should be noted that the criteria set forth by Article 4 of the Third Geneva Convention only apply
to irregulars that fight alongside a party to the conflict and not to the armed forces of a party to
the conflict itself. In the event that there is an element of doubt on the status of an irregular, the
matter must then be determined by a competent tribunal. The prisoners must be presumed POWs
pending such determination.

However, on numerous occasions, states have, as a matter of practice, extended POW status to
cover persons not strictly entitled to such status under the convention, as was for example the
practice of the United States in Vietnam. This may reflect in part the core humanitarian
principles reflected in IHL manifest in the specific provisions of GC III, but also the desire to
ensure similar treatment of their own forces if captured.2

RIGHTS OF A PRISONER OF WAR

2
ibid

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 The Third Geneva Convention is now the authoritative statement concerning prisoners of war.
An outstanding innovation of the convention, in addition to its application to all other armed
conflicts is that it makes reference to internal wars.3

The convention defined prisoners in a way calculated to include every person likely to be
captured in hostilities. Full and primary responsibility for the treatment of prisoners of war fall
upon the Detaining Power, not upon the individuals. The Detaining Power is under a general
obligation to treat prisoners humanely and protect them from danger. 4

They must be supplied with food, clothing and medical attention.5

They should be protected from public curiosity.6

They are also entitled to elaborate due process guarantees, including trial by the courts that
respect the same standards of justice as those respected by the courts that would try the military
of the detaining state.7

Medical and scientific experiments are prohibited. Prisoners are to be treated alike regardless of
race, nationality, religious beliefs or political opinions.8

At the time of detention, the prisoner is required to give a minimum of information. He is not to
be subjected to torture and may retain his personal effects.9

Conditions at the detention camp must meet standards provided in the convention.10

The work that the prisoner is required to perform must not be inherently dangerous, humiliating
or directly connected with the operations of war.11

The prisoner must be permitted contact with his family and correspondence privileges.12

3
International law cases and materials; Lori Damrosch, Louis Henkin, Richard Crawford Pugh, Oscar Schachter,
4
Article 19 GC III 9
5
Article 20 GC III
6
Article 13 GC III
7
Article 84, 99-108 GC III
8
Article 16 GC III
9
Article 17 GC III
10
Article 22 and 23 GC III 15 Article 51,52 and 56 GC III
11
Article 51,52 and 56 GC III
12
Section V Article 70-73 GC III

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Procedures must be established for registering complaints against the administration of the
detention camp.13

Penal and disciplinary sanctions, including procedures for determining guilt, are prescribed by
the convention.14

The convention also provides that the properties of prisoners shall not be disposed of them when
arrested.15

A very important group of provisions have been specifically dedicated for the repatriation of
prisoners of war. The three categories are distinguished; Firstly, the severely wounded and the
sick must be repatriated directly and without delay, i .e. as soon as they are fit to travel .This is a
humane gesture towards such persons who may never participate in war again. Secondly, all
other prisoners of war must be released and repatriated without delay after the cessation of active
hostilities. Thirdly, without waiting for the war to end, the parties to the conflict should repatriate
prisoners of war on humanitarian grounds, possibly on a reciprocal basis.

Organizations Related to Prisoners of War Law

American Ex-Prisoners of War

13
Article 78-90 GC III
14
Article 82-88 GC III
15
Article 18 GC III

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A not-for-profit, Congressionally-chartered, veterans' service organization advocating for former
prisoners of war and their families. Established April 14, 1942.

ICRC - War and International Humanitarian Law

Armed conflict is as old as humankind itself. There have always been customary practices in
war, but only in the last 150 years have States made international rules to limit the effects of
armed conflict for humanitarian reasons. The Geneva Conventions and the Hague Conventions
are the main examples. Usually called international humanitarian law (IHL), it is also known as
the law of war or the law of armed conflict.

Prisoner of War / Missing Personnel Office, Defense (DPMO)

"Keeping the Promise," Fulfill their Trust," and "No one left behind" are several of many mottos
that refer to the efforts of the Department of Defense to recover those who became missing while
serving our nation. The mission requires expertise in archival research, intelligence collection
and analysis, field investigations and recoveries and scientific laboratories.

Stop POW Torture

American service personnel have suffered at the hands of torturers in war after war for a century
or more. The United States needs a serious commitment by our government in Washington to
stop once and for all the torture of our servicemen and women by rogue nations and their leaders,
like Iraq under Saddam Hussein. POWs are legally protected under the Third Geneva
Convention, a binding international treaty signed by the U.S., Iraq, and 192 other nations (only
Nauru is not a party). We should not compromise on humane treatment of our troops and
citizens.16

16
https://www.hg.org/prisoners-of-war.html, last visited on 19 th oct,2018

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CONCLUSION AND SUGGESTIONS

The Convention Relating to Prisoners of war 1949 or commonly known as the third Geneva
Convention has proven to be the “Bible” for the prisoners of war. The ill experiences of the
second World War and the collective hue and cry amongst the peacekeepers regarding the 
human  rights violations that occurred during this period as regards the prisoners of war ,made it
the need of the hour that certain necessary and indispensable safeguards must be enacted for
them. The result of this deliberation was the Third Geneva Convention which laid down a large
number of rights for the war captives. But as we all know, the biggest problem isn’t “THE
LAW” but “ITS IMPLEMENTATION”. Though, the convention has necessarily provided for a
wide range of rights but we can see the powerful states making a complete mockery out of it.
The most glaring example is that of the infamous Guantanamo Bay which has been referred to as
the “Gulag of our times” by the Amnesty International. It has been reported that the Prisoners
aren’t even provided with the Basic of protections as provided under the common Article 3 of the
Geneva Conventions.   Moreover, in the present era we can see different militant groups like
Boko Haram and ISIS taking war captives and bluntly refusing to observe the safeguards as
provided under the Geneva Convention to the extent that they even entertain the public execution
of these prisoners of war so that a stern message can be sent round the globe.

What is required is that the mere documentation of the safeguards isn’t enough. They must be
brought into actual application as well. This is only possible when the United Nations stop acting
like a “toothless dog” and take strong measures against the states who have been continuously
involved in the violation of the safeguards provided to these victims of war. The situation is so
lethargic that these prisoners of war are not even provided with the basic of amenities like food
and water. An example is required to be set up and it is possible only when the UN takes action
against the states violating the laws so that it may set a precedent requiring the states to act in the
manner provided in the conventions.

BIBLIOGRAPHY

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Articles:-

INTERNATIONAL HUMANITARIAN LAW AND PRISONERS OF WAR by Qudus A.

The Institutional Features of the Prisoners of War Treaties by James D. Morrow

“Treaties, States Parties and Commentaries”, International Committee of the Red Cross

Websites:-

www.researchgate.com

www.hg.org

www.ipleaders.in

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