Title: Protection of POWs and civilians
1Part 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
3Outline 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
4Distinction Between Civilians and Combatants
5Persons 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)
6Persons Deprived of Their Liberty
- IAC
- captured combatants prisoners of war
- NIAC
- upon capture, people participating in the
hostilities are not entitled to POW status
7Persons 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
8Categories 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
9Loss 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
10Determination 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
11Exceptions
- 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)
12Treatment 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)
13End 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)
14Persons 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)
15Part 2
16Occupation
- 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,
17Definition 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.
18Three 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
19Applicable 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
20The 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. -
21Rights 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)
22Duties 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)
23Internment 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
24Conditions of internment
- camps should not be set up in areas
 particularly exposed to the dangers of warÂ
(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)
25Iraq 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
26SCR 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
27SCR 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