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Prisoners Of War Can't Be Treated Like Most Prisoners

Illustration for article titled Prisoners Of War Cant Be Treated Like Most Prisonersem/em
Illustration: Elena Scotti (GMG)

This piece is part of a recurring series that aims to be a complete guide to the laws of war. You can read previous entries here.

The protection of prisoners of war is a fundamental pillar of international humanitarian law (IHL), the laws of armed conflict. The only legitimate objective of armed conflict is to weaken the military capacity of the adversary. Therefore, rather than permitting the cold-blooded execution of all captured enemy personnel, IHL guarantees their humane treatment for the entirety of their detention.

Wars cannot be conducted on a “leave no survivors” basis. In international armed conflict, captured enemy combatants must be detained as prisoners of war and cannot be killed. Declaring that no quarter shall be given, or conducting operations on that basis, is prohibited under international humanitarian law and is a war crime.


The Third Geneva Convention of 1949, or GC III, lays down an extremely detailed body of rules that provide basic rights and a minimum standard of treatment that are to be afforded to all prisoners of war. Let’s take a tour around which persons are entitled to be protected as prisoners of war, the treatment they must be afforded, and the issue of detention in non-international armed conflict.

Who Is Entitled To Protection As A Prisoner Of War? 

The most concise answer to this question: the armed forces of a party to an international armed conflict, other than its medical and religious personnel, are entitled to prisoner of war status when they fall into the power of the enemy.

The full answer is slightly longer. The neat classification cited above is contained in the First Additional Protocol of 1977, or AP I, and therefore only applies to international armed conflicts between or within the 174 nations that have ratified it. The Third Geneva Convention, which like the other 1949 Geneva Conventions has been ratified by every nation in the world and therefore has universal application, also contains a definition of prisoners of war which is broader than that in AP I.

The prisoner of war regime only applies to international armed conflicts (IACs)—those between two or more nations, situations of military occupation, and qualifying wars of national liberation. It does not apply in non-international armed conflicts (NIACs)—qualifying conflicts between a state and a non-state armed group, or between multiple non-state armed groups. Therefore, the prisoner of war regime discussed in this article applied to the United States’ international armed conflict with Iraq, but not, for example, to its non-international armed conflict with the Islamic State. The absence of the prisoner of war regime in NIAC is one of the biggest differences between the two types of conflict. We’ll discuss detention in non-international armed conflict below.


Members of armed forces of a party to an IAC are entitled to protection as prisoners of war. Your nation’s military personnel fall under this category. From the outset of the United States’ international armed conflict against Afghanistan in 2001, at least until the swearing in of the Karzai government in 2002, the Taliban were the de facto government of Afghanistan, and its soldiers were therefore legally entitled to be treated as POWs under this provision, although they were not in fact recognized or treated as such.

Members of irregular militias and volunteer corps “belonging to” a party to an IAC are protected only if they collectively fulfil the famous four conditions: being under responsible command, having a fixed distinctive sign recognizable at a distance, carrying arms openly, and conducting operations in accordance with the laws and customs of war. Members of Hezbollah have argued that they are entitled to POW status under this provision as belonging to Lebanon’s forces, though Israeli courts have found that they were not as Hezbollah did not satisfy the four conditions.


GC III also contains a further category protecting members of regular armed forces who profess allegiance to a government or authority not recognized by the detaining power—a provision that was included specifically to address the situation that faced members of Charles de Gaulle’s French Committee of National Liberation during World War II.

Finally, GC III extends prisoner of war status to participants in a levée en masse (French for “mass uprising”), being 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.


In the case of doubt as to whether a person is entitled to prisoner of war status, they are to receive the protection of GC III until their status has been determined by a competent tribunal.

A combatant only loses their right to protection as a prisoner of war if they are captured while not distinguishing themselves from the civilian population when engaged in an attack or in a military operation preparatory to an attack. In such a case, the combatant must still be granted the protections afforded to prisoners of war under GC III, but can now be punished for their unprivileged participation in hostilities.


Protection Of Prisoners Of War 

The protective prisoner of war regime under IHL seeks to balance competing interests: the military interests of the detaining party (in having the prisoner taken off the battlefield), the military interests of the prisoner’s party (in ensuring the prisoner is not harmed), and the prisoner’s own interests (in ensuring a minimum standard of treatment while detained). The purpose of the detention of prisoners of war is simply to remove them from the battlefield, and not as a means of punishment. The detention of prisoners of war on this basis is an exception to the general principle of human rights law that a person cannot be deprived of their liberty if they have not been found guilty of a crime.


As soon as a combatant falls into the hands of the enemy in an IAC, the rules governing the conduct of hostilities cease to apply and the protective POW framework described in this article begins to apply. They may therefore no longer be made the subject of attack and must be treated in accordance with the humanitarian provisions of the Third Convention.

The general principle upon which the protective regime under the Third Geneva Convention operates is that prisoners of war must at all times be humanely treated. Acts causing death or serious injury to prisoners of war are prohibited, as is making them the subject of medical or scientific experiments, a gruesome practise to which thousands were subjected during World War II. Prisoners of war must be protected at all times, particularly against acts of violence and against public curiosity, and are entitled in all circumstances to respect for their persons and honor. Reprisals against POWs are prohibited. Women “shall be treated with all the regard due to their sex” and must benefit from treatment as favorable as that granted to men, and all POWs must be afforded equality of treatment without adverse distinction based on race, nationality, religion, political opinion, or similar criteria.


When questioned on the subject, POWs are famously bound to disclose their names, date of birth, and military rank and serial number, and may be subject to a restriction of their privileges if they do not. They are not bound to provide any other information, though there is no prohibition on questioning prisoners of war, nor on offering incentives for their cooperation. However, no physical or mental coercion of any kind is permitted to secure information, and the wilful killing, torture, inhuman treatment, or wilful causing of serious injury are grave breaches of the Third Convention and war crimes. Prisoners of war, not being nationals of the detaining power, are not bound to it by any duty of allegiance and naturally cannot be obliged to provide it with any assistance nor any information other than that required to identify them and register their capture.

Prisoners of war cannot be punished for the mere fact that they participated in hostilities—combatant privilege provides an immunity from being prosecuted for using force against persons or objects in a manner which is consistent with international humanitarian law. They can therefore not be prosecuted for acts such as the lawful killing or wounding of an enemy combatant, but can be tried for war crimes or “regular” crimes unrelated to the conflict. To take two prominent examples, both Manuel Noriega and Saddam Hussein were detained by the United States as prisoners of war and subsequently criminally prosecuted. Noriega was accorded POW status when captured in the United States’ invasion of Panama as a general of its armed forces, and was ultimately convicted in Florida of various peacetime racketeering and drug-related offenses. Hussein was entitled to POW status during the United States’ invasion of Iraq as commander-in-chief of its armed forces, and after being handed over to Iraqi authorities was convicted by an Iraqi court of crimes against humanity committed decades prior.


Prisoners of war are kept in internment for the duration of hostilities. Crucially, they are not incarcerated, in recognition of the fact that the prisoner of war regime is not designed as punishment. Except where necessary to safeguard their health or in accordance with disciplinary measures, prisoners of war cannot be held in close confinement, and collectively they are not to be held in penitentiaries. They may therefore not be kept in locked cells but are rather simply to be kept within the limits of the POW camp in which they are held. The term “prisoner” of war is in some ways misleading to the extent that it evokes imagery of cell-bound or shackled inmates convicted under regular criminal laws. In fact, GC III even contains provision for prisoners of war to be released on parole or promise, “bound on their personal honor” to fulfill their engagement, though this is a rarity in modern warfare.

POWs must be evacuated from the combat zone as soon as possible after their capture. During the Ethiopia-Eritrea war commencing in 1998, both parties were found to have breached the requirement to evacuate in humane conditions in almost identical terms as a result of their confiscating POWs’ shoes and forcing them to endure evacuation marches over long distances and harsh terrain while barefoot.


Prisoners of war must be interned only on land, away from the battlefield, sheltered from aerial bombardment and other hazards of war to the same extent as the local civilian population. They must be given quarters as favourable as that given to the detaining power’s own forces who are billeted in the same area, including with regards to bedding, blankets, and floor space per person. Men and women are to be dormed separately.

The detaining power must provide, free of charge, for POWs’ maintenance and for medical attention required by their state of health. Prisoners of war must receive medical inspection at least once per month and at all times can present themselves to medical authorities for examination. Camps must have adequate infirmaries and, if necessary, isolation wards, and prisoners of war with a serious disease or requiring special treatment must be admitted to a military or civilian medical unit for treatment.


Clothing, underwear, and footwear must be provided by the detaining power, taking into account the local climate. All sanitary measures must be taken to ensure camps are clean and healthy and to prevent epidemics, including separate men’s and women’s conveniences, which must be kept clean and available day and night. Camps must be furnished with baths and showers, and prisoners of war must be given soap and water for their personal toilet and washing their laundry.

Prisoners of war must be given food of a quantity, quality, and variety to keep them in good health and to prevent weight loss. (This standard isn’t included for cosmetic reasons; a reference to a prisoner’s weight was considered the best way to measure whether proper rations were being provided—the alternative standards considered were that either that daily rations would have to satisfy a prescribed caloric content or that they would need to be comparable with the rations of the local civilian population.) Sufficient drinking water must be supplied.


Prisoners of war must be granted freedom of exercise of religious duties and provided with adequate premises where religious services may be held. This is a crucial requirement considering that many armed conflicts are fought between parties holding different beliefs, and, of course, often because of their differences in belief.

Prisoners of war are subject to the laws, regulations, and orders in force in the armed forces of the detaining power. Judicial and disciplinary action can be taken against a prisoner for a breach of those applicable laws (though not, as discussed above, for their mere fact of participation in hostilities). If a POW is alleged to have committed an offense, they may only be tried by a military court unless existing laws expressly permit trial by a civilian court, and they must always benefit from essential guarantees of independence and impartiality—including rules against double jeopardy, against retroactive laws, the specification of charges and relevant legal provisions, rights and means of defense including the calling of witnesses and assistance of qualified counsel and an interpreter, the right to written reasons for judgement, and the right to an appeal. Depriving a prisoner of war of fair trial rights is a grave breach of GC III and a war crime. In sentencing, courts must take into account that the prisoner is not bound to the detaining power by any duty of allegiance. Women prisoners of war may not be sentenced to a more severe punishment, or subjected during punishment to more severe treatment, than men or women members of the detaining power dealt with for a similar offense.


Each prisoner of war camp must be under the authority of a responsible commissioned officer of the detaining power, who must keep a copy of GC III and ensure that it is posted in camps in the prisoners’ own language.

Prisoners of war who are physically fit may be put to work by the detaining power during their time in internment. GC III was perhaps ahead of its time in explicitly noting that this was “with a view particularly to maintaining them in a good state of physical or mental health.” (This, rather than the economic interests of the detaining power, is the primary consideration behind these rules.) In accordance with the principle that POWs maintain their allegiance to their nation, they may only be put to prescribed classes of work—agriculture, commercial business, public utility services, to name a few—which may not have a military character or purpose. That is, prisoners of war cannot be made to join the war effort against their own force by being compelled to (for example) work in the manufacturing of weapons or handling of weapons stores on behalf of the detaining party.


The labor undertaken by prisoners of war cannot be unhealthy or dangerous, workers must receive the necessary training, and conditions must be suitable and humane, especially as regards accommodation, food, clothing, and equipment. National legislation concerning the protection of labor, and in particular safety regulations, must be applied. Workers must get one hour’s lunch break per day, plus one period of 24 consecutive hours’ rest per week (preferably on a Sunday), and earn a paid eight-day break after notching up one year of work. Officers may ask for suitable work but may not be compelled to do so, while non-commissioned officers can only be required to do supervisory work.

All prisoners of war must be paid for their time in internment. The detaining power must grant them a monthly advance of pay, which it tallies up and recoups from the POWs’ home country at the close of hostilities. Prisoners of war are paid according to their rank, divided into five categories: those ranking below sergeants receive eight Swiss francs per month (converted into the currency of the detaining power); sergeants and other non-commissioned officers earn 12 francs; warrant officers and commissioned officers below the rank of major make 50 francs; majors, lieutenant-colonels, and colonels trouser 60 francs, and general officers rake in 75 francs. These sums, folks, are not explicitly indexed to inflation, so although they might been enough to get by in 1949 with enough change left over to ride the trolley from Battery Park to the polo grounds, POWs may need to rely on their home nation providing supplementary pay, which the detaining power is obliged to distribute so long as prisoners of the same rank are paid equally.


Prisoners of war who are put to work must be paid for their labor, at a rate fixed by the detaining power, which must be—cue the dollar dollar bill y’all gesture—not less than one-fourth of one Swiss franc per working day. Recall above, however, that the local national legislation concerning the protection of labor must be duly applied, which may or may not include provision for a minimum wage.

GC III contains provision for the establishment of two types of bodies to facilitate communication of POWs with the outside world. Each party to a conflict must institute a national Information Bureau for prisoners of war who are in its power, while a neutral Central Prisoners of War Information Agency is to be established in order to act as an intermediary for correspondence. In most conflicts, the International Committee of the Red Cross (ICRC) performs the latter function through its Central Tracing Agency.


These bodies facilitate communication in three ways. First, prisoners of war are entitled to fill in capture cards which record their capture, address, and state of health, to send to their next of kin and their nation’s Information Bureau. Secondly, the national Information Bureaux are required to communicate to the Central Tracing Agency similar identifying information, as well as regular updates concerning transfers, releases, repatriations, escapes, admissions to hospital, serious illnesses or injuries, and deaths, and to transmit the personal effects of captured prisoners of war. The Agency enters this information into a central register and can provide it to family members who inquire about their detained loved ones. Thirdly, POWs have the right to send and receive letters and cards and relief shipments. During World War II, the ICRC created some 25 million individual identity cards and passed on 120 million messages to and from POWs to their families.

All prisoners of war have the individual right to make complaints and requests to the detaining power regarding their conditions of captivity. In addition, prisoner of war representatives are entrusted with representing their colleagues before military authorities and the ICRC, and to further their physical, spiritual, and intellectual well-being. In camps containing only officers and in mixed camps, the senior officer is automatically appointed as the representative, while in camps containing no officers, prisoners elect their representative by secret ballot every six months. All prisoners must have the right to consult their representative, while representatives are entitled to visit all premises where prisoners of war are detained and to communicate with the detaining authorities.


The sole justification for interning prisoners of war is to prevent them from participating in hostilities. There is therefore no justification for continuing their detention either when they cannot physically participate because of wounds or sickness, or at the end of a conflict because there are no longer hostilities to participate in. In such circumstances prisoners of war must be offered repatriation to their own country. During a conflict, feuding parties may also agree that able-bodied POWs who have undergone a long period of captivity may be repatriated transferred to a neutral third country. Prisoners of war serving a judicial punishment or awaiting trial may be kept back on that account, but those serving only disciplinary punishment may not be. It is a fundamental principle that repatriated POWs may not be employed on active military service.

For a variety of unhappy reasons, prisoners of war may not want to be repatriated to their home country, because of dangers that they or their families face back home. There are many examples of leaders decrying their captured servicemembers as failures or traitors and enacting retribution on prisoners of war upon their return. In one sad example, it was said that many of the Eritrean prisoners of war held by Djibouti as a result of their 2008 border war had joined the Eritrean army specifically in order to deliberately surrender to Djibouti forces, hoping to escape Isaias Afwerki’s regime.


For these reasons, GC III specifically states that no sick or injured prisoner of war may be repatriated against their will during hostilities. There is no such explicit provision applicable to the end of hostilities, which has caused considerable difficulties in conflicts such as the first Gulf War, where many Iraqi prisoners of war held in camps in Saudi Arabia refused to return home and had to be retained as protected civilians until the United Nations High Commissioner for Refugees could find third countries in which to resettle them. There is a tension between several competing interests—the will of the POW, the strict wording of GC III that prisoners of war are to be repatriated at the end of hostilities, the fact that GC III provides that no prisoner of war may renounce their rights (though query whether there is a “right” to be repatriated against your will), the interests of the detaining power in no longer expending resources on maintaining prisoners of war nor of releasing them into its society, and international human rights and refugee laws against returning people to situations of danger. In many cases, the international refugee law principle of non-refoulement may prevail to prevent repatriation if the prisoner’s life or freedom would be threatened in their home nation on account of their status as a former prisoner of war.

The ICRC is given the mandate under the Third Geneva Convention to visit and interview all prisoners of war in their place of internment, imprisonment, or labor (and is given a similar mandate with respect to civilians protected under the Fourth Convention), with a view to monitoring their standard of treatment.


The ICRC carries out visits according to specific terms and conditions that it applies uniformly and must be agreed to by detaining authorities before a visit can take place. It insists on being provided with a list of detainees, and being granted access to all persons deprived of their liberty who come within its mandate and to all premises and facilities used by and for detainees. It further requires authorization to talk freely and in private with all detainees and authorization to repeat visits so as to monitor implementation of recommendations and to guard against reprisals. The cornerstone of the ICRC’s operations are its independence, impartiality, and neutrality, and so it fanatically observes confidentiality both as to its conversations with detainees and with detaining authorities.

Detention In NIAC

There is no analogue to the prisoner of war regime in non-international armed conflict. The issue of detention in NIAC—which, you’ll recall, are qualifying conflicts between a state and a non-state armed groups or between such groups—is comparatively unclear. Since NIACs are the most prevalent type of conflict globally (think of the United States’ conflict with the Islamic State, or civil wars in Yemen and South Sudan), and given that parties regularly detain enemy fighters in those conflicts, this is an incredibly important issue.


Treaty laws do not address detention as comprehensively with respect to NIAC as they do with respect to IAC. The nations of the world, who collectively make the laws of war, are wary of codifying extensive laws relating to non-international armed conflicts which may be seen as legitimizing non-state armed groups which they see as insurgent criminals or infringing on their right to settle internal conflicts without international interference. The pre-World War II Geneva Conventions did not apply to NIAC at all. During the drafting of what became the 1949 Conventions, the ICRC proposed that they should apply in their entirety to IACs and NIACs equally, but that was not to be. Ultimately, Article 3 common to the four 1949 Geneva Conventions—the so-called mini-Convention—was included so as to provide a general protection for those affected by NIAC. Together with the brief Second Additional Protocol of 1977 (which applies only to a subset of NIACs fought within one of the 168 states that have ratified it), the treaty law of IHL answers some of the important questions regarding detention in NIAC, and requires us to look elsewhere for the rest.

Broadly speaking, we are interested in the answers to two questions: is a party to a NIAC authorized to detain people in that conflict, and what rules must they abide by in doing so?


To the latter question, common Article 3 requires humane and non-discriminatory treatment of all persons taking no active part in hostilities (therefore including detainees), and explicitly prohibits violence, murder, mutilation, cruel treatment, torture, hostage-taking, outrages against personal dignity, and the passing of irregular sentences. The extensive positive obligations laid down by GC III discussed above do not apply, so the specifics of the conditions of detention (such as to quarters, food, work, and so on) are to be informed by the principles of humanity and non-discrimination, human rights laws, domestic laws on detention and internment, agreements concluded between the parties to the conflict, and soft law instruments such as the non-binding Copenhagen Process on the Handling of Detainees in International Military Operations.

The former question is far less clear. Human rights laws against arbitrary or unlawful detention require that any party depriving a person of their liberty have a legal basis to do so. International humanitarian law does not explicitly authorize parties to a NIAC to detain enemy fighters or civilians (in contrast to the authorizations in GC III and GC IV in IAC). IHL does contemplate and regulate detention in NIAC (e.g. the guarantees laid down by common Article 3 discussed in the previous paragraph), but that does not necessarily imply that IHL therefore authorizes or accepts the legality of that detention. (It would be difficult to argue that it does, given that the entire purpose of international humanitarian law as a whole is to regulate armed conflicts regardless of whether the conflict being fought is lawful or unlawful under the separate laws governing the use of force.) Though some argue that the power to target enemy fighters in NIAC logically implies a power to detain, the majority view is probably that neither treaty nor customary international humanitarian law authorizes detention in NIAC.


If a power to detain exists, it therefore must come from another source—most likely from domestic laws (of either the detaining state or the state where the person is being detained) or a United Nations Security Council resolution. If there is such a power, its scope and contours may be influenced by domestic and international human rights laws.

To illustrate, one recent high-profile United Kingdom Supreme Court case considered detention carried out by British forces in Afghanistan in 2010. It found that the law of NIAC did not provide a legal basis to detain enemy personnel. United Nations Security Council resolutions did provide coalition forces with the authority to detain for the accomplishment of its mission, but coalition policy limited authorized detention to a period of 96 hours before the detainee had to be handed over to Afghan authorities, unless it was necessary to detain for longer for imperative security reasons. Despite the existence of this legal basis, the UK was found to have breached its obligations under the European Charter of Human Rights regarding deprivation of liberty because its procedures for detention did not permit a review of their lawfulness.


All persons detained in armed conflict deserve to be treated humanely, no matter their allegiance. The fundamental guarantees laid out in GC III and common Article 3 are owed to all detainees. Upholding these standards is something worth fighting for.

The next installment of this series will cover the protection of civilians.

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