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Protection of POWs and civilians

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Title: Protection of POWs and civilians


1
Part 1
  • Protection of POWs and civilians

2
  • Protection of Prisoners Of War (POWs) and
    civilians
  • University of Oslo
  • 6 October 2008
  • Mads Harlem, Head of International Humanitarian
    Law Unit
  • NORWEGIAN RED CROSS

3
Outline of Programme
  • Distinction between civilians and combatants
  • Persons entitled to protection under IHL in
    general
  • Focus on persons deprived of their liberty
  • Focus on Civilians in Occuppied Territory
  • Case Studies

4
Distinction Between Civilians and Combatants
5
Persons Entitled to Protection under IHL
  • IACs different categories of "protected persons"
  • wounded, sick and shipwrecked
  • medical and religious personnel
  • prisoners of war
  • civilians in the power of the enemy
  • NIACs "persons taking no active part in the
    hostilities" (Common Art. 3) "all persons who do
    not take a direct part or who have ceased to take
    part in hostilities" (Art 4.1, AP II)

6
Persons Deprived of Their Liberty
  • IAC
  • captured combatants prisoners of war
  • NIAC
  • upon capture, people participating in the
    hostilities are not entitled to POW status

7
Persons Deprived of Their Liberty - IACPrisoners
of War Scope
  • two conditions
  • 1) fall within the categories of persons
    specifically listed in
  • Art. 4, GC III and
  • Art.44 (3) AP I
  • 2) fall in the power of the enemy

8
Categories of Persons Prisoners of War
  • Members of the armed forces
  • Members of other militias and volunteer corps
    belonging to a party to the conflict provided
    they (1) are under responsible command (2) wear
    a fixed distinctive sign (3) carry arms openly
    and (4) respect IHL
  • Authorised persons who accompany the armed forces
  • Civilian members of military aircraft crews
  • War correspondents
  • Supply contractors
  • Members of labor units or of services responsible
    for the welfare of the armed forces
  • Members of merchant marine crews and civil
    aircraft crews of the parties to the conflict
  • Levée en masse

9
Loss of Combatant/Prisoner of War Status
  • in general, violations of IHL do not deprive
    combatant/POW of that status
  • Combatants must carry arms openly during each
    military engagement and while visible to the
    adversary when engaged in a military deployment
    prior to the launching of an attack
  • combatant who falls into the power of an adverse
    party while failing to do so forfeits right to
    POW status, but shall receive equivalent
    protections
  • combatant who falls into the power of an adverse
    party while not engaged in an attack or in a
    military operation preparatory to an attack shall
    not forfeit right to be combatant/POW by virtue
    of prior activities

10
Determination of Prisoner of War Status
  • Presumption of Prisoner of War Status
  • "Should any doubt arise as to the status of
    persons who have committed belligerent acts and
    have fallen into the hands of the enemy, such
    persons will enjoy the protection of the third
    Geneva Convention until such time as their status
    has been determined by a competent tribunal."
  • Art. 5, GC III see also Art. 45, AP I

11
Exceptions
  • Spies act under false pretences or deliberately
    in a clandestine manner caught in the act
  • do not have the right to POW status (Art. 46, AP
    I)
  • Mercenaries specially recruited to fight in an
    armed conflict, motivated by the desire for
    private gain (material compensation superior to
    that given to combatants of the regular armed
    forces)
  • do not have the right to be a combatant or a POW
    (Art 47, AP I)

12
Treatment of Prisoners of War
  • protection and humane treatment (Arts. 12 16,
    GC III)
  • questioning (Art. 17, GC III)
  • evacuation (Arts. 19 and 20, GC III)
  • conditions of detention (Arts. 21 48, GC III)
  • labor (Arts. 49 57, GC III)
  • relations with the outside world (Arts. 69 77,
    GC III)
  • relations with the authorities (Arts. 78 109,
    GC III)
  • right for ICRC to visit (Art. 126, GC III)

13
End of Captivity
  • repatriation for medical reasons during the
    conflict (Arts. 109 117, GC III)
  • release and repatriation without delay after the
    end of active hostilities (Arts. 118 119, GC
    III)

14
Persons deprived of Their Liberty NIACs
  • Scope all persons detained in relation with NIAC
  • no POW status
  • Humane treatment minimum standards
  • can be prosecuted for the simple fact of having
    taken up armseven if IHL respected
  • At the end of hostilities, authorities shall
    endeavor to grant broadest possible amnesty to
    persons who have participated in armed conflict
    or those deprived of their liberty for reasons
    related to armed conflict (Art. 6(5), AP II)

15
Part 2
  • Occupation

16
Occupation
  • The de facto situation determines whether there
    is occupation
  • Common article 2 the present Convention shall
    apply to all cases of declared war or of any
    other armed conflict which may arise between two
    or more of the High Contracting Parties, .The
    Convention shall also apply to all cases of
    partial or total occupation of the territory of a
    High Contracting Party,

17
Definition of Occupation
  • Art. 42, Hague reg. Territory is considered
    occupied when it is actually placed under the
    authority of the hostile army. The occupation
    extends only to the territory where such
    authority has been established and can be
    exercised.
  • Common Art.2 ..the Conventions apply to all
    cases of partial or total occupation of the
    territory of a High Contracting party, even if
    the occupation meets with no armed resistance.

18
Three criteria
  • Exercise of authority or effective control
  • The occupied government is incapable of
    exercising its authority
  • The occupying power is capable of exercising such
    authority
  • Over the whole or parts of the territory of
    another state
  • Irrelevant if the occupation was met with armed
    opposition

19
Applicable international law
  • Articles 42 to 56 of the Hague reg.
  • Articles 27 to 34 and 47 to 78 of GC IV
  • Customary law
  • Specific rules laid down by international bodies
    such as the Security Council

20
The Law in Occupied Territory
  • Art. 43, Hague Reg. The authority of the
    legitimate power having in fact passed into the
    hands of the occupant, the latter shall take all
    the measures in his power to restore, and ensure,
    as far as possible, public order and safety,
    while respecting, unless absolutely prevented,
    the laws in force in the country.

21
Rights of the Occupying Power
  • can change the laws and regulations in force to
    the extent necessary (Art. 64, GC IV)
  • to permit it to fulfill its obligations under GC
    IV
  • to enable it to administer the territory
  • for its own security
  • can hand over those accused of violating such
    laws and regulations to its own military courts
    in the occupied territory (Art. 66, GC IV)
  • can intern the civilian population "for
    imperative reasons of security" (Art. 78, GC IV)
  • can force the civilian population to workbut
    only in limited circumstances (Art. 51, GC IV)

22
Duties of the Occupying Power
  • cannot carry out deportations, transfers, or
    forced evacuations (Art. 49, GC IV)
  • cannot transfer part of its own civilian
    population into the territory (Art. 49, GC IV)
  • cannot force civilians to serve in its armed
    forces (Art. 51, GC IV)
  • must ensure the food and medical supplies of the
    population (Art. 55, GC IV)
  • must facilitate the delivery of humanitarian
    assistance (Art. 59, GC IV)
  • must maintain medical services (Art. 56, GC IV)

23
Internment of protected persons
  • Occupying powers can intern protected persons GC
    IV, Article 79
  • Due to security reasons (Art.41, 42, 68)
  • Must review at leat twice a year (court or
    administrative board) (Art. 43)
  • Saramati
  • Al Jeddah

24
Conditions of internment
  • camps should not be set up in areas
     particularly exposed to the dangers of war 
    (Art. 83, GC IV)
  • internees accomodated and administered separately
    from POWs and other detainees (Art. 84, GC IV)
  • conditions of internment (Arts. 83 - 98, GC IV)
  • administration and discipline (Arts. 99 - 104, GC
    IV)
  • relations with the outside world (Arts. 105 -
    116, GC IV)
  • penal and disciplinary sanctions (Art. 117 - 126,
    GC IV)
  • transfers effected humanely (Art. 127, GC IV)
  • released as soon as reasons for internment no
    longer exist (Art. 132, GC IV), and in any event,
    as soon as possible after the close of
    hostilities (Art. 133, GC IV)

25
Iraq and Kosovo
  • Iraq Armed attack by the US and UK followed by
    occupation by the US and the UK
  • SCR 1483
  • Kosovo Armed attack by the NATO followed by
    something which looks a lot like occupation by
    the UN
  • SCR 1244

26
SCR 1483 (2003)
  • Establishes US and UK as occupying powers (the
    Authority)
  • Establishes that other states working with the
    Authority do not therefore become occupying
    powers
  • Calls upon the Authority to promote the welfare
    of the Iraqi people through effective
    administration of the territory, including in
    particular working towards restoration of
    security and stability and creation of democratic
    conditions

27
SCR 1244 (1999)
  • Establishes the international civil presence
    (UNMIK) and gives it mandate to perform basic
    civilian administrative functions where and as
    long as required
  • Authorises Member States to establish security
    presence (KFOR) and gives it mandate to use all
    necessary means to fulfil the mandate
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