Post No.: 0660
Furrywisepuppy says:
At the time of publishing, there’s sadly a Russo-Ukrainian IAC (see Post No.: 0652 regarding such terminology) – technically ongoing since 2014, along with the military occupation of Crimea, and parallel rebel NIAC(s) in Donbas. But the situation has undoubtedly escalated recently. It’s therefore a pertinent time to learn some more IHL…
What’s often referred to as ‘Geneva Law’ – or the protections offered by the Geneva Conventions to persons who are most vulnerable in situations of war – concerns the regulation of the treatments of prisoners of war (POWs), the wounded, sick and non-combatants/ordinary civilians caught up in war. The murder, mutilation, torture, taking of hostages or human shields, cruel and degrading treatment, or summary executions, of persons under the control of ‘the enemy’ are prohibited. ‘Geneva Law’ also deals with the occupation of the territory of one State by another (the law of occupation).
Combatants and civilians are submitted to different regimes of protection. ‘Combatant immunity’ is the immunity from prosecution of all acts of war that don’t violate IHL. Members of armed forces cannot be prosecuted for simply participating in the hostilities. Combatants are also protected when they are hors de combat (out of combat) and fall into the enemy’s power through being unconscious or incapacitated by injury, sickness, being shipwrecked or captured, and ultimately unable to defend themselves. A combatant will be protected if arrested, or if he/she surrenders or deserts his/her army and falls into the adversary’s hands.
Civilians are submitted to a larger regime of protection, provided they don’t participate in the hostilities. Individuals who don’t belong to armed forces but nonetheless participate in hostilities are often called ‘unprivileged combatants’, ‘unlawful combatants’ or sometimes ‘terrorists’.
Note that there’s no combatant or POW status in NIACs, thus there are only persons enjoying varying levels of protection according to whether they’re involved in the hostilities.
In IACs, those who are entitled to POW status according to Geneva Convention III (GCIII) if they fall into the enemy’s power are – combatants of regular armed forces, members of irregular armed forces if they display a distinctive sign that’s recognisable at a distance indicating their membership to that armed force (plus other conditions), those who accompany the armed forces (e.g. war correspondents, private supply contractors, civilian crew members), and individuals from non-occupied territories who spontaneously take up and openly carry arms (plus other conditions) (levée en masse).
‘Unprivileged combatants’ will still be protected if they fall into the adversary’s hands according to Geneva Convention IV (GCIV) – albeit they’ll lose their protection from being attacked because they’re directly participating in the hostilities (fair enough) i.e. they can be lawfully targeted but won’t lose their civilian status if captured. If someone’s status is in doubt, they should be regarded as a POW until a ‘competent tribunal’ clarifies it.
For States fighting in IACs at least, the reason for fighting isn’t really to kill as many of one’s enemy as possible but usually to achieve some kind of political, resource or humanitarian objective. So the purpose of detaining combatants is to take them out of action until that objective is hopefully achieved. Therefore POWs can be interned until the end of hostilities without specific reasons or procedures. They don’t have to be charged or convicted of anything like criminals. It’s neither a punishment nor act of revenge – they’re just taken out of combat so that they no longer pose a direct threat to the detaining power, until hopefully the enemy State surrenders or the active hostilities otherwise end. It’s metaphorically like taking your opponent’s chess pieces off the board instead of needing to destroy/bin them.
GCIII dictates quite detailed rules for the treatment of POWs, including humane treatment, respect for dignity and honour, the protection from violence, intimidation, insults or public curiosity, and the provision of their maintenance and medical needs free of charge – all without discrimination on grounds of their nationality, religious beliefs or political opinions (some distinctions are permissible based on their rank and age though). POWs may not be the object of reprisals, and must be interned in appropriate camps located far from combat zones rather than impounded in jail cells. Wilful murder, torture or any other inhumane treatments will count as grave breaches of ‘Geneva Law’.
POWs can be utilised for labour if they’re physically able to. Non-commissioned officers shall only be required to do supervisory work. Officers or equivalent shall not be compelled to work unless they request to.
Interrogating POWs isn’t forbidden. Combatants are regularly captured for the purpose of gathering information about military plans or operations. Any kind of question can be asked but, according to GCIII, POWs are only legally bound to give their surname, first names, rank, date of birth, and army, regimental, personal or serial number; or failing this, equivalent information. Identifying combatants helps to determine whether they’re entitled to POW status and any special privileges according to their military rank and age. It also enables the detaining power to establish links with a prisoner’s family and the power to which they belong. If a POW wilfully lies or refuses to answer these questions however, the detaining power can lawfully restrict any special privileges according to that prisoner’s rank; although never his/her fundamental rights. POWs must never be subject to any form of coercion or torture, either to extract information from or sanction them. Only humane forms of pressure are permissible.
Escaping or attempting to escape isn’t unlawful, but the detaining power is allowed to take all necessary steps to prevent that (e.g. fencing POW camps). However, the use of weapons should be a last resort that’s preceded by appropriate warnings. Recaptured prisoners can be subjected to disciplinary sanctions barring violence against life or limb.
When active hostilities end and it seems reasonably clear they’ll not resume, or when a prisoner is individually unable to re-participate in the hostilities (e.g. due to serious wounds or sickness) – POWs should be released and repatriated to their home States without delay. But common violations involve seeing POWs being used as bargaining chips in negotiations. Other problems include when they don’t wish to return home for the fear of being persecuted there as traitors.
Civilians remain the main victims of armed conflicts today so they’re protected by detailed and complex rules according to whether they find themselves in enemy territory, invaded territory or occupied territory. Civilians are protected from ill or inhumane treatment, coercion, violence and threats thereof, corporal punishment, torture and other physical suffering, scientific experiments not necessitated by the treatment of conditions, collective penalties, pillage (looting or plundering), reprisals, forcible deportation, or arbitrary detention. ‘Aliens in the territory of a party to the conflict’ have the right to leave. Those in confinement must be repatriated in a timely manner – or if unfeasible, there’s a minimum standard of treatment that includes provisions regarding their means of existence and employment. Protections also exist regarding religious convictions, practices, habits and customs, rules on food and clothing, hygiene and medical attention, intellectual and physical activities, personal property and financial resources, the treatment of refugees and when transferring civilians to another belligerent, and more.
There are special protections for women and children; particularly pregnant women or mothers of children under seven. Parents and children should be lodged together in the same place of internment. Children under twelve are obliged to wear a means of identification in case they get separated.
Very broadly, GCIV distinguishes between the ‘civilian population’ in general and ‘protected persons’ based on their ‘nationality’ or allegiance. The convention doesn’t cover the treatment reserved by States with regard to their own nationals since this is governed by national law; although there’s still a general regime for the protection of the civilian population as a whole (plus human rights). So that there’s no gap in protection – all persons of enemy nationality who aren’t entitled to POW status are, in principle, regarded as civilians protected by GCIV. Regardless, some general safeguards concerning aid and relief for all civilians independently of any criterion of nationality/allegiance are prescribed. Woof.
Belligerents may, in extreme circumstances, take measures of control and security as necessary as a result of the conflict, like interning civilians or assigning them to residence elsewhere. Civilians certainly cannot be interned solely for intelligence-gathering purposes, or be tortured for confessions or information. They must be interned separately from POWs; but like with POWs, the detention of civilians should only be to prevent them from committing potential hostile acts or attitudes towards the detaining power. It’s about balancing military with humanitarian considerations. In principle, internees shall not be employed as workers (except for certain medical, administrative, maintenance, cooking or protective tasks) unless they so desire. Interned civilians must be released as soon as the reasons that necessitated their internment have dissipated, whether the hostilities remain ongoing or not. Both POWs and interned civilians may remain held in detention after the hostilities have ended though if they have pending criminal proceedings against them or if they’re serving sentences for convicted criminal offences.
Civilian internees are subject to the laws in force in the territory in which they’re detained; whereas POWs are subject to the laws, regulations and orders in force in the detaining power’s armed forces.
The injured and ill (whether by mental or physical disorder, disease or disability), the infirm, expectant mothers and other vulnerable people – or really anyone who’s in need of medical assistance/care (if they refrain from any hostile acts) – are especially protected. They must be respected, and actively cared for, protected, searched for, recorded, forwarded information of their identity, collected and evacuated without delay; although the personnel and means available in combat zones where wounded and sick are located, and the concrete situation on the battlefield, are factors that’ll be taken into account. If the wounded or sick cannot be evacuated quickly, they mustn’t be unnecessarily exposed to danger. Discrimination is strictly prohibited except according to medical reasons when prioritising the order of who shall be administered treatment first (combat triage).
The dead shall also be searched for, collected, recorded and identified without delay. The identities of all protected persons, and deceased, should be forwarded to the National Information Bureau (NIB) as soon as possible.
During evacuations, there are dangers for families becoming permanently separated, so there’s a detailed regime governing the maintenance and re-establishment of family links. The ICRC’s Central Tracing Agency helps the reunification of families caught up in conflicts or disasters.
Whereas the protection of individuals in IACs is subject to hundreds of detailed treaty provisions – NIACs are only subject to a few; although customary IHL significantly reduces this gap, along with IHRL.
The distinction between civilians and combatants is often blurred by the nature of the hostilities in civil wars. The law governing NIACs makes no distinction between combatants and civilians anyway, and consequently there’s no POW status for anyone and civilians aren’t, technically speaking, ‘protected persons’ pursuant to the Geneva Conventions and Additional Protocols. Persons in NIACs are however, in principle, protected regardless of their nationality, provided they don’t partake in the hostilities. Yet the notion that members of armed groups are classed as civilians is controversial – this affects who can be lawfully targeted or detained. The law of occupation doesn’t apply in NIACs either.
Since there’s no POW status in NIACs, it implies that’s there’s no combatant immunity either. States aren’t going to accept that rebels, terrorists, insurgents, or whatever these non-state armed group members may be labelled, should have combatant immunity for taking up arms against the State. The State would rather prosecute them for treason under national law! And under these kinds of charges, governmental forces can detain members of armed groups, but not vice-versa. This may be problematic, however, if State forces act abroad in the context of ‘transnational armed conflicts’, such as when a terrorist group is being chased on the territory of a third State.
Woof! And that’s a ruff rundown of ‘Geneva Law’.
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