Legal advice & representation for prisoners of war, their families and loved ones
Legal advice & representation for prisoners of war, their families and loved ones.
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Prisoner of War
A prisoner of war (POW) is a person who is held captive by a belligerent power during or immediately after an armed conflict.
Belligerents hold prisoners of war in custody for a range of legitimate and illegitimate reasons, such as
- isolating them from the enemy combatants still in the field (releasing and repatriating them in an orderly manner after hostilities),
- demonstrating military victory,
- punishing them,
- prosecuting them for war crimes,
- exploiting them for their labour,
- recruiting or even conscripting them as their own combatants,
- collecting military and political intelligence from them, or
- indoctrinating them in new political or religious beliefs.
Hague and Geneva Conventions
Chapter II of the Annex to the 1907 Hague Convention IV – The Laws and Customs of War on Land covered the treatment of prisoners of war in detail.
These provisions were further expanded in the 1929 Geneva Convention on the Prisoners of War and were largely revised in the Third Geneva Convention in 1949.
Article 4 of the Third Geneva Convention protects captured military personnel, some guerrilla fighters, and certain civilians. It applies from the moment a prisoner is captured until their release or repatriation.
One of the main provisions of the convention makes it illegal to torture prisoners and states that a prisoner can only be required to give their name, date of birth, rank and service number (if applicable).
The ICRC has a special role to play, with regards to international humanitarian law, in restoring and maintaining family contact in times of war, in particular concerning the right of prisoners of war and internees to send and receive letters and cards (Geneva Convention (GC) III, art.71 and GC IV, art.107).
However, nations vary in their dedication to following these laws, and historically the treatment of POWs has varied greatly.
To be entitled to prisoner-of-war status, captured persons must be lawful combatants entitled to combatant's privilege—which gives them immunity from punishment for crimes constituting lawful acts of war such as killing enemy combatants.
To qualify under the Third Geneva Convention, a combatant must be part of a chain of command, wear a "fixed distinctive marking, visible from a distance", bear arms openly, and have conducted military operations according to the laws and customs of war.
(The Convention recognizes a few other groups as well, such as "[i]nhabitants 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".)
Thus, uniforms and badges are important in determining prisoner-of-war status under the Third Geneva Convention. Under Additional Protocol I, the requirement of a distinctive marking is no longer included.
Francs-tireurs, militias, insurgents, terrorists, saboteurs, mercenaries, and spies generally do not qualify because they do not fulfill the criteria of Additional Protocol 1. Therefore, they fall under the category of unlawful combatants, or more properly they are not combatants.
Captured soldiers who do not get prisoner of war status are still protected like civilians under the Fourth Geneva Convention.
The criteria are applied primarily to international armed conflicts.
The application of prisoner of war status in non-international armed conflicts like civil wars is guided by Additional Protocol II, but insurgents are often treated as traitors, terrorists or criminals by government forces and are sometimes executed on spot or tortured.
However, guerrillas and other irregular combatants generally cannot expect to receive benefits from both civilian and military status simultaneously.
Under the Third Geneva Convention, prisoners of war (POW) must be:
1. Treated humanely with respect for their persons and their honor
2. Able to inform their next of kin and the International Committee of the Red Cross of their capture
3. Allowed to communicate regularly with relatives and receive packages
4. Given adequate food, clothing, housing, and medical attention
5. Paid for work done and not forced to do work that is dangerous, unhealthy, or degrading
6. Released quickly after conflicts end
7. Not compelled to give any information except for name, age, rank, and service number
In addition, if wounded or sick on the battlefield, the prisoner will receive help from the International Committee of the Red Cross.
When a country is responsible for breaches of prisoner of war rights, those accountable will be punished accordingly.