in armed conflict, Constraints 0000104949 00000 n 50 0 obj A group belongs to a party to the conflict for the purpose of Article 4(A)(2) if the group fights on behalf of that party and that party accepts this fighting role. 0000002312 00000 n Activity Sheet 19. Article 25 provides that PoWs who are interned must be quartered under conditions as favourable as those of the forces of the Detaining Power who are billeted in the same area. Geneva Convention III Commentary: What Significance for Womens Rights? Civilian members of aircraft crews were also included, recognizing the increasing role of aircraft in providing deliveries to combat areas.49, In relation to treatment, GC III makes no distinction between PoWs who are combatants and those who are civilians. The residual category of any other distinction based on similar criteria makes express provision for this. endobj In terms of the substance of implementing GCIII in multinational operations, the Commentary pays special attention to two important issues. the maximum duration of work is fixed as the maximum allowed under the domestic legislation of the Detaining Power for civilians in the same work, and the time taken to travel to and from the place of work must be counted within the working hours. It is in conjunction with the minimum standards and safeguards provided in GC III that the principle of assimilation operates. Conflict. 0000001805 00000 n What Comes Next? For members of such militia or volunteer corps to be considered PoWs upon falling into the power of the enemy, the militia and volunteer corps must collectively fulfil four conditions, each of which serves a protective purpose: they must be commanded by a person responsible for his or her subordinates, they must have a fixed distinctive sign recognizable at a distance, they must carry arms openly, and they must conduct their operations in accordance with the laws and customs of war. The 2020 ICRC commentary on the Third Convention ( para.1005) sets out the following two elements: 1) "the group must in fact fight on behalf of that Party" and 2) "that Party must accept both the fighting role of the group and the fact that the fighting is done on its behalf." An important technique in complying with pre- and post-transfer requirements has been the development of arrangements for detainee transfers. The principle of assimilation is a cross-cutting concept that reflects an understanding that prisoners of war will be treated on the same terms as members of the armed forces of the Detaining Power (para. For most PoWs, captivity will cease at the end of active hostilities. It provides for a greater role for relief societies and acknowledges the special position of the ICRC in this respect. Inhuman or Degrading Treatment or Punishment, The Geneva Conventions, a series of international treaties concluded in Geneva between 1864 and 1949 for the purpose of ameliorating the effects of war on soldiers and civilians. The first convention was initiated by Jean-Henri Dunant; it established that medical facilities were not to be war targets, that hospitals should treat all wounded impartially, that civilians aiding the wounded should be protected, and . Elizabeth Stubbins Bates, Geneva Convention III Commentary: Unpacking the Potential of Ensure Respect in Common Article 1, Tim Wood, GCIII Commentary: Removing ambiguity on the treatment of prisoners of war, Keiichiro Okimoto, The United Nations and the Third Geneva Convention. An important part of this planning and preparation is the requirement for the Detaining Power to instruct the armed forces of their duties.76 This is understandable considering the more predictable nature of a transfer compared to an evacuation from the battlefield.85, During captivity, a prisoner may also be transferred to another Power if that receiving Power is also a party to GC III86 The Detaining Power is necessarily familiar with and has pre-existing experience with implementing those rules and standards and thus can readily apply them to PoWs as well. 0000004482 00000 n endobj The following discussion summarizes a number of these protections. Render date: 2022-11-08T05:42:59.696Z The ICRCs new Commentary on the Third Geneva Convention (GCIII) can help with both of these challenges. ), 29 April 194612 November 1948, International Juan Ramn de la Fuente and Pablo Arrocha Olabuenaga, by E. Danya Perry, Joshua Stanton and Norman L. Eisen, by Laurence H. Tribe, Philip Lacovara and Dennis Aftergut, by Ximena Casas Isaza and Catalina Martinez, by Asha Rangappa, Norman L. Eisen and Bradley P. Moss, by Noah Bookbinder, Norman L. Eisen, Fred Wertheimer, Donald Simon, Jason Powell, Debra Perlin, Colby Galliher and Madison Gee, by Norman L. Eisen, Noah Bookbinder, Fred Wertheimer, Donald Simon, Jason Powell, Debra Perlin, Colby Galliher, Madison Gee and Taylor Redd, by Karl Mihm, Justin Cole, Iva Petkova, Margaret Shields, Mari Dugas, Nicholas Tonckens and Tess Bridgeman, by Karl Mihm, Jacob Apkon and Sruthi Venkatachalam, by Emily Berman, Tess Bridgeman, Megan Corrarino, Ryan Goodman and Dakota S. Rudesill, by Laura Brawley, Antara Joardar and Madhu Narasimhan, by Tess Bridgeman, Rachel Goldbrenner and Ryan Goodman, by Oona A. Hathaway, Preston Lim, Mark Stevens and Alasdair Phillips-Robins, by Emily Berman, Tess Bridgeman, Ryan Goodman and Dakota S. Rudesill, by Scott Roehm, Rita Siemion and Hina Shamsi, by Justin Hendrix, Nicholas Tonckens and Sruthi Venkatachalam, by Ryan Goodman, Mari Dugas and Nicholas Tonckens. All-source, public repository of congressional hearing transcripts, government agency documents, digital forensics, social media analysis, public opinion surveys, empirical research, more. 0000007626 00000 n toutes circonstances, Etudes et Additional Protocol II: Elevating the minimum threshold of intensity? Clothing must be adapted, for example, to the prisoner's age, gender, and religious and cultural background.125 While the protections conferred by the 1929 Convention had an important impact in several theatres of World War II, in others they did not, in part because they were interpreted not to be applicable. Conflict, The Legal Status For example, certain provisions in relation to the use of PoW labour, such as the rate of payment, are framed around the rank of PoWs.50 0000105044 00000 n It can also be implicit or tacit, such as when a group fights alongside the State and claims to be fighting on its behalf and the State does not deny this relationship when given the opportunity. Detaining Powers must take religious practices into account in many aspects of camp life, such as setting up the place of internment (for example, providing facilities for washing), food preparation (consistent with religious precepts and taboos) and work schedules (for example, allowing time for prayer).136 The second category of PoWs consists of members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict34 <>stream Imposing isolation on PoWs with mental health conditions should be avoidedit may aggravate the person's condition, may be inconsistent with the prohibition on adverse distinction, and may amount to torture or other ill-treatment as it can lead to psychotic symptoms and/or significant functional impairments, self-harm or even suicide.131, In order to prevent illness, GC III also provides an obligation on Detaining Powers to take all necessary sanitary measures to ensure cleanliness and healthfulness of camps and to prevent the spread of infectious diseases.132 This, in turn, relates to the protection contained in Article 16 of GC III, which provides for the equality of treatment of PoWs and the prohibition of adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria. Perhaps more significantly, GCIII is still relevant because recent NIAC detention practices and standards, such as the 2012 Copenhagen Process Principles and Guidelines, have ended up importing many requirements from IAC law. This evacuation must be carried out humanely and in conditions similar to those for the forces of the Detaining Power when they change positions.81, Depending on the circumstances, such as the distance and available means of transport, it may be that PoWs pass through transit camps during their evacuation. It contains 143 Articles whereas the 1929 Convention had only 97. <>stream Launch of the updated Commentary on the Third Geneva Convention from ICRC on Vimeo. Law, Protection of the Even factoring in the Swiss consumer price index, 0.25 Swiss francs in 1949 corresponded to just 1.25 Swiss francs in 2019.148 "displayNetworkTab": true, Judgment, Journal of International Criminal of the American Society of International Law, The As already recognized in the 1960 Pictet Commentary, and reiterated in the updated Commentary, an exception to the obligation to repatriate PoWs may be made if, as determined on an individual case-by-case-basis, there are, serious reasons for fearing that a prisoner of war who is himself opposed to being repatriated may, after his repatriation, be the subject of unjust measures affecting his life or liberty, especially on grounds of race, social class, religion or political views, and that consequently repatriation would be contrary to the general principles of international law for the protection of the human being.96, An interpretation of Article 118 allowing for such an exception is in line with the principle of non-refoulement under international law, by which a State cannot transfer persons within its control to another State if there is a real risk that they may face violations of certain fundamental rights.97, The updated Commentary on Article 118 also discusses the obligation to release and repatriate in situations where the legal classification of a conflict changes from an international to a non-international armed conflict, because of a change of circumstances on the ground. <> The updated Commentaries on the First and Second Conventions were published in 2016 and 2017 respectively. As discussed above, in addition to setting out fundamental principles for the protection of PoWs, GC III elucidates express protections on many facets of the life of a PoW. The updated Commentaries seek to reflect developments in how the law is applied and interpreted in practice, recognizing that over seventy years have passed since the Geneva Conventions were adopted. In the event that prisoners do pass away during internment, the Detaining Power retains certain obligations towards the deceased, which indirectly benefit their family. In its discussion of Article 12, the Commentary is right to point out that [w]here States conduct multinational operations in the context of an international armed conflict, it may not always be apparent which State is the Detaining Power and thus responsible for the treatment of the prisoners (para 1519). The development of an international treaty, however, began in earnest in the eighteenth and nineteenth centuries, at which time many States began to establish and consolidate professional armies, to enter bilateral agreements regarding the conditions of warfare,13 , , Richard Gowan on Ukraine and How Russias War Reverberates at the United Nations, , , The Case for Creating an International Tribunal to Prosecute the Crime of Aggression Against Ukraine (Part I), The Failing Response to Violent Extremism in Africa and the Need to Reform the International Approach, Gorbachev: The Leader We Needed in My Time, UN Report on Chinas Rights Abuses Against Uyghurs Illustrates Need for Naming and Shaming, Human Rights Due Diligence: A Defense Industry Business Necessity, AcidRain Malware and Viasat Network Downtime in Ukraine: Assessing the Cyber War Threat, Digest of Recent Articles on Just Security (Sept. 3-9), The Absence of Any Executive Privilege by a Former President For National Security Secrets, Tit-for-Tat Hostilities In Syria: War Powers and International Law Implications. Pursuant to these rules, the contributors started from the ordinary meaning of the terms of GC III in their context and in light of the object and purpose of the treaty. endobj The Geneva Conventions of 1949 were created by the members of the United Nations under the guidance of the International Committee of the Red Cross (ICRC) and took effect on October 21, 1950. hb```f``P B@16 " ,'n;00 For example, the Convention covers such matters as disability and mental health, but the terminology used had become obsolete, and an updated interpretation was needed. This GCIII Commentary series is published in collaboration with the ICRC's Humanitarian Law & Policy blog and EJIL: Talk.The series editors for Just Security are Adil Haque and Ryan Goodman.]. Detaining Powers must allow for a minimum of one hour's rest in the middle of the day, a day of rest per week, and a period of eight consecutive rest days every year.146, Article 62 provides that PoWs shall be paid a fair working rate of pay by the detaining authorities direct, and that this rate shall be fixed by the authorities but shall at no time be less than one-fourth of one Swiss franc for a full working day.147 The UN Secretary-Generals 1999 bulletin on observance by UN forces of IHL goes even farther, applying mutatis mutandis a GCIII standard to all forms of detention related to UN operations. ill-treatment in international humanitarian law, The Definition of Torture: Proceedings of an Expert Numerically, this is likely to be the most significant category. For example, it contains a section dedicated to the beginning of captivity, outlining the obligations of the Detaining Power immediately after prisoners fall into its hands: Article 17 deals with the questioning of prisoners, Article 18 addresses the property of prisoners, and Articles 19 and 20 concern the evacuation of prisoners from the combat zone. @kindle.com emails can be delivered even when you are not connected to wi-fi, but note that service fees apply. Established in 1869, the International Review of the Red Cross is a peer-reviewed, academic journal produced three times a year by the International Committee of the Red Cross (ICRC) and published by Cambridge University Press. Prisoners of war must at all times be humanely treated. The existence of a doubt that triggers a determination by a competent tribunal must not depend solely on the subjective belief of the Detaining Power; rather, a Detaining Power must consider each situation in good faith, on a case-by-case basis, with a proper assessment of the facts.58, Any person determined to be a PoW will continue to enjoy the protections of GC III. For example, it can arise in relation to persons who accompany the armed forces and have lost their identity card, persons engaged in belligerent acts without wearing a uniform in zones of active hostilities, or persons suspected of being spies. Just Security is based at the Reiss Center on Law and Security at New York University School of Law. Conventions: A Commentary, International Humanitarian Law and the Treatment of We see this as an important contribution to reaffirming the continued relevance of the Conventions, generating respect for them and strengthening protection for victims caught up in armed conflict. %%EOF Finally, GC III also contains rules applicable to the Detaining Power when a prisoner dies during captivity. This may also be required by other applicable rules of international law.120, Parties to an armed conflict shall also provide canteens where foodstuffs, soap and tobacco and ordinary articles in daily use must be available for purchase.121 0000008304 00000 n The acceptance of a belonging to relationship can also be demonstrated by the overall control that the party exercises over the group.35. The undersigned Plenipotentiaries of the Governments represented at the Diplomatic Conference held at Geneva from April 21 to August 12, 1949, for the purpose of revising the Convention concluded at Geneva on July 27, 1929, relative to the Treatment of Prisoners of War, have agreed as follows: As Turkey Backs Azerbaijans Recent Strikes on Armenian Towns, Where Are Russia, the EU, and the US? Any unlawful act or 0000104808 00000 n Any decision to use isolation wards must be taken exclusively on the advice of a medical doctor or other appropriately qualified health professional, and should only be for as long as necessary. A second challenge comes with the multinational-specific legal difficulty that tends to arise in a different way than in a purely national context. health of a prisoner of war in its custody is prohibited and will be regarded as International Committee of the Red Cross, The updated ICRC Commentary on the Third Geneva Convention: A new tool to protect prisoners of war in the twenty-first century, The camera and the Red Cross: Lamentable pictures and conflict photography bring into focus an international movement, 18551865, Book review: "Digital Witness: Using Open Source Information for Human Rights Investigation, Documentation, and Accountability", Book review: "The Persistence of Reciprocity in International Humanitarian Law", Librarians Pick: "Transitional Justice and the 'Disappeared' of Northern Ireland: Silence, Memory, and the Construction of the Past", ICRC Position Paper: Artificial intelligence and machine learning in armed conflict: A human-centred approach, ICRC Position Paper: International humanitarian law and cyber operations during armed conflicts, ICRC-affiliated reports: Digital technologies and war, Interview with Prime Minister Jri Ratas of Estonia. Close examination was also made of the preparatory work for each article of the Convention. Further, World War II witnessed the use of detention itself as a means to enable the killing of innumerable soldiers, including by summary execution, extreme acts of violence, ill-treatment, starvation and malnutrition.24 respecter et faire respecter le droit international humanitaire en Find out more about saving content to Google Drive. Forty-seven States were party to the 1929 Convention at the outbreak of World War II.21 0000015620 00000 n The Geneva Convention relative to the Treatment of Prisoners of War was first adopted in 1929, but significantly revised at the 1949 conference. endobj The definition in Article 4 is supplemented in this respect by Additional Protocol I (AP I) (and customary IHL), which excludes spies, saboteurs and mercenaries from PoW status.54, The drafters of GC III gave considerable attention to defining which categories of persons qualify for PoW status, and in many ways reduced the uncertainties that existed within previous definitions under the Hague Regulations and 1929 Convention. A safeguard is built into the Convention though, as it includes an explicit prohibition against re-employing such repatriated prisoners on active military service; this is particularly important in modern warfare, given the wider variety of assignments that might make the redeployment of seriously wounded or sick prisoners possible.101. It clarifies and expands the scope of persons to whom it applies; it provides clearer regulation to keep prisoners in good health; it elaborates on the guarantees they are due in cases of disciplinary or penal sanction; it provides stricter regulation on the use of PoW labour; and it clarifies the obligation to repatriate prisoners at the end of active hostilities. ARTICLE 3 In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following This GCIII Commentary series is published in collaboration with the ICRC's Humanitarian Law & Policy blog and EJIL: Talk. Below is a summary of some of the provisions provided for interned PoWs. 0000003641 00000 n 46 44 The Proceedings of the European Society of International Law, Humanity: A What is acceptable and what is prohibited in armed conflict? However, some provisions of the Convention presume the existence of membership in the armed forces and are silent as to their application in relation to the other categories of PoWs. Because of the general understanding that only States can be High Contracting Parties to the Geneva Conventions, this means that PoWs may not be transferred to entities other than States, such as non-State armed groups and paramilitary and non-military organizations.88, An important obligation due to the transferring Power is that if the receiving Power fails to carry out the provisions of the Convention in any important respect, it must take effective measures to correct the situation or shall request the return of the prisoners of war.89 All medical care must comply with the applicable standards of medical ethics, which include the duty to provide medical care impartially and without adverse distinction. If a Detaining Power interns PoWs who are civilians, it must apply these provisions in good faith and in line with the rationale behind the provisions in question.51, The sixth and final category of PoWs consists of participants in what is commonly referred to as a leve en masse. This first category also includes members of militia or volunteer corps forming part of the armed forcesthat is to say, formally incorporated into the armed forces and under the responsible command of a party to the conflict.30 please confirm that you agree to abide by our usage policies. But it has proven difficult to get subsequent agreement among allies on detention standards. Torture, Customary <> In addition to these six categories, Article 4 also sets out two categories of persons who are not PoWs per se, but are to be treated as PoWs.53 Belligerent Reprisals in International Humanitarian Law: Historical The updated Commentary on the Third Geneva Convention related to the treatment of prisoners of war is now available. While the phenomenon of prisoners of war, regulated by the Third Geneva Convention, is pertinent to international armed conflicts, it is important to remember that this Convention was the first treaty to formulate standards of treatment in internment. The circumstances in which the conditions for a leve en masse apply are limited. 0000091877 00000 n Educational opportunities are particularly important for PoWs who are interned for long periods of time. This provision is slightly more stringent, however, than the provision on evacuation, as the conditions in the former case must only be similar. That noted, the particular procedural guarantees applicable to status determinations are not regulated by IHL and are a matter of domestic law.57, Doubt as to a person's status arises when it is not clear whether the person belongs to any of the categories discussed above. HVnGWQ>h'*0@/AN8 T=zagY$,sCHkk$\~be,!Y%-5g|\L5j}Y[ ](r}z~|pr.%j9H_ Serving as a legal adviser in a multinational environment such as NATO has its challenges. Detaining Powers cannot charge import, customs or other dues on such shipments, or postal dues.143, The ability to use a PoW's labour is of potential benefit to the Detaining Power. The footnote to this section refers to published agreements from the Persian Gulf War. The Third Geneva Convention, 1949 Drafting of the convention Up to 1949, the Geneva Conventions were designed to assist only the victims of wars between States. A person determined not to fall within the categories of Article 4 of GC III will otherwise be considered a civilian and is protected by GC IV (including Articles 43 and 78), and/or Article 75 of AP I, as applicable, and customary IHL.59, GC III embodies a balance between the requirements of humanity and military necessity. 49 0 obj On the one hand, disparities might not be a major cause for concern as long as the receiving Power meets the internationally-agreed GCIII baseline. Failure to provide for the basic needs of prisoners with respect to their quarters, food, water and medical care, in a way that would endanger the health of the prisoners, or denying prisoners contact with the outside world, including visits from the ICRC, would also be covered. Therefore, current interpretations offered in the updated Commentary take these developments in other areas into account whenever they are relevant for the interpretation of a Convention rule. Times of Conflict and Terrorism, In 0000076315 00000 n The second part provides a framework for understanding when certain obligations are triggered; these may be broadly grouped as the obligations of a Detaining Power prior to holding PoWs, the obligations triggered by the taking of PoWs and during their captivity, and the obligations that arise at the end of a PoW's captivity. Abbreviations GC III Third Geneva Convention HCP High Contracting Parties POW Prisoner of war AC Armed conflict PC Party to the conflict OC / OP / NC Occupied country / Occupying Power / Neutral country .
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