Doubtful prisoner-of-war status

Abstract

The Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949 (Third Geneva Convention or GC III), generally regarded as part of the customary law of armed conflict, 1 sets out, inter alia, two cardinal principles. The first is that a prisoner of war cannot be prosecuted and punished for the mere fact of having taken part in hostilities. 2 The second is that prisoners of war must be given humane treatment from the time they fall into the power of the enemy until their final release and repatriation. 3 Prisoner-of-war status is therefore of utmost importance for a captured person in the hands of a hostile power in terms both of legal status and of treatment. If a person is not given combatant status, he may be tried for having committed a belligerent act. Where this criminal offence may be punished by capital punishment under the domestic jurisdiction, the lack of prisoner-of-war status may be a matter of life or death. Therefore, when the prisoner-of-war status of a captured person is in doubt, the question of how to resolve the determination of status takes on a crucial significance, a realization not lost on the delegates at the Diplomatic Conference of Geneva in 1949 when negotiating the Third Geneva Convention. 4 Accordingly, this Convention provides that where the prisoner-of-war status of a captured person who has committed a belligerent act is in doubt, their status shall be determined by a competent tribunal. 5 The Convention does not, however, lay down the composition of the tribunal, or specify the due process rights of a person facing status determination procedures. The open-ended wording of the Third Geneva Convention's Article 5(2) begs the question of what exactly a competent tribunal consists of, and what judicial guarantees must be accorded to those who come before one. It also raises the question as to how doubt over prisoner-of-war status arises.

Legal issues arising from the armed conflict in Afghanistan

“…This rule makes clear that where there is a doubt as to the POW status of a captured person, the parties to the conflict are required to have the individual status determined by a formal mechanism. 175 Such an individual determination of the status is certainly denied if POW status is summarily refused to any captured belligerent upon a military order issued by a state's president. Furthermore, the term "tribunal" indicates that the decision on the status must not be left to a single person.…”