27 Jan GCIII Commentary Symposium: “Preparations Have Been Made in Advance”–GCIII and the Obligation to Respect and Ensure Respect by Preparing for Retaining POWS
[Kelisiana Thynne is a Legal Adviser in the Advisory Services on IHL, Legal Division of the International Committee of the Red Cross (ICRC). This is a post in our joint blog symposium exploring the new ICRC Commentary on the Third Geneva Convention (GCIII Commentary)].
Respecting the Conventions in case of an armed conflict regularly presupposes that preparations have been made in advance (ICRC 2020 Commentary to GCIII, (all paragraph references in the blog are to this Commentary), para 178)
[O]bligations in the Conventions may best be implemented during armed conflicts if preparatory steps are taken already in peacetime to execute them (para 233)
Suppose your State has become involved in an international armed conflict; and you are a government official or military commander. The plan is no doubt to get in and out, all military objectives met. Amongst these military objectives, you will wish to capture enemy soldiers for a variety of reasons – and in an international armed conflict, these will be prisoners of war (POWs). What are you to do with them? If you haven’t prepared for this eventuality beforehand, you will be scrambling to catch up with your IHL obligations and you will waste time, resources and lack respect for human dignity and wellbeing in the process.
The Third Geneva Convention of 1949 (GCIII) details how to treat POWs once you have them in your power. But if you fail to abide by the provisions of GCIII, your State will be committing an internationally wrongful act. You will likewise fail to comply with the requirements of common Article 1 to all four Geneva Conventions of respecting and ensuring respect for IHL.
The obligation to respect and to ensure respect the Geneva Conventions and IHL as a whole (ICRC Study on Customary International Humanitarian Law (2005) Rule 139) requires considerable preparation in peacetime (paras 161, 178, 218, 232). The ICRC Commentary on common Article 1 has outlined three parts to the obligation to ensure respect: respect and ensure respect by own forces, ensure respect by whole population, ensure respect by others.
This blog will look at the first aspect of the obligation to respect and ensure respect by which “States are [themselves] required to take appropriate measures to prevent violations from happening in the first place” (para 178) and for which preparations are a vital prerequisite for States to be able to meet their obligations and honour their international commitments.
To prepare for eventual challenges and potential violations during conflict, there are several steps that States must take across all four Geneva Conventions:
- instruction and training of military forces (in regard to GCIII, those dealing with POWs require specific instruction (para 57))
- dissemination of the Conventions to the general population as well (para 232)
- official translations of IHL documents (para 232)
- adopt and implement legislation to prevent misuse and abuse of the emblems (para 232)
- repression – including domestic implementation of IHL provisions into legislation, judicial training, prosecutorial instructions, police practices, and so on, so that violations can be repressed, and perpetrators searched for, prosecuted or extradited (paras 55, 179, 232; see also ICRC’s legal factsheets on penal repression).
These very important requirements are generic to all the Geneva Conventions but GCIII contains many practical ways that States need to specifically prepare in peacetime in order to respect and ensure respect for their obligations before and while retaining and detaining POWs some of which are outlined below.
How do you determine who is a POW?
Article 4 of GCIII sets out who is entitled to POW status when fallen into the power of the enemy; Article 5 states that if there is any doubt about a POW status, a competent tribunal must determine their status. As the ICRC Commentary to GCIII notes, such a tribunal must be established under appropriate legal rules and regulations in national law (whether military or civilian), it must have relevant procedural guarantees and an established composition and rules of procedure (paras 1125, 1127, 1128). States must have the laws or regulations in place to be able to establish such a tribunal quickly and effectively, and this can only be done adequately by preparation in peacetime (para 1126).
Article 17 of GCIII provides that “Each party to a conflict is required to furnish the persons under its jurisdiction who are liable to become prisoners of war, with an identity card … [which] shall be shown by the prisoner of war upon demand, but may in no case be taken away from him.” Such a card proves the identity of a retained soldier as a POW. As the ICRC Commentary states, “the card constitutes proof – as a uniform does not always do, especially in case of attempted escape – that its owner is a member of regular armed forces and is entitled to the treatment laid down by [GCIII]” (para 1816). These cards must be issued to all soldiers by their own governments “in good time, ideally in time of peace. In cases where a State has not issued identity cards prior to the start of hostilities, it should do so without delay at the outbreak of hostilities” (para 1807).
Where and how are you going to intern POWs?
One of the most important issues to address is where and how to house POWs (para 1710). Article 15 requires the Detaining Power to maintain and provide housing and medical care to POWs free of charge. Article 23 provides that POWs may not be detained where they may be subject to combat or firepower and they must have access to bomb shelters to the same extent as the local civilian population. Other Articles provide further details on conditions of internment, such as the standards for quarters (Article 25), food (Article 26), clothing (Article 28), hygiene and medical attention (Articles 29–32), and recreation, study, sports and games (Article 38). Preparation before conflict is required to ensure that you can meet all these requirements.
Existing facilities (but not existing prisons housing other prisoners (see Article 22 and see also para 1995)) can be used or new facilities but plans and regulations must be made before conflict. Plans must have been made to ensure the distinction of rank (para 1746), and separate quarters and hygiene facilities for women POWs (para 1747). Such infrastructure, equipment, logistics, trained staff (including medical staff), a budget and operating procedures, among other things, must be decided and provided before conflict begins (para 1983).
The ICRC Commentary notes “article  acts as a minimum guarantee; it obliges the Detaining Power to meet all the basic needs of the prisoners of war in its hands. Nevertheless, the exact type and standard of maintenance is dependent on the context” (para 1720). It goes on, “The type and standard of maintenance that are required in a particular case also depend on the time, place and other circumstances of captivity. A hot and humid climate, for example, might pose a greater risk of certain diseases (e.g. malaria) and must be taken into account when arranging accommodation, health care and medication” (para 1725). The location of each facility must therefore be assessed before POWs are interned.
Mitigating measures can be taken for some natural risks in certain locations. The Commentary gives the interesting example that “during the conflict between India and Pakistan in the early 1970s prisoners were interned in a farming region plagued by mosquitos; to counter the problem, Pakistan provided the prisoners with mosquito sprays” (para 1991). The logistical arrangements to mitigate existing problems should also have been prepared beforehand.
How do you register POWs?
The registration of POWs is of the utmost importance to avoid disappearances and to keep track of movements, deaths and repatriations of POWs. Article 122 provides that a National Information Bureau must be established by each of the Parties to the conflict and also by neutral States which may receive POWs – therefore National Information Bureaux should be well established before conflict by all States. Article 122 provides “The Power concerned shall ensure that the Prisoners of War Information Bureau is provided with the necessary accommodation, equipment and staff to ensure its efficient working.” Article 122 also uses language such as “most rapid”, “quickly”, and “within the shortest possible period” indicating that speed of recording and sharing information about POWs is essential. For that to happen, the National Information Bureau should ideally be well established before the outbreak of the conflict (para 4702) or at least the “procedures and mechanisms for its creation and functioning” (para 4710). As the ICRC Commentary notes, “No detail is provided in this article or elsewhere in the Conventions on the proposed nature, composition and working methods of the national information bureau” (para 4709), but the Commentary gives examples of functioning National Information Bureaux (para 4712) and the working methods which might be adopted (paras 4710, 4717, 4718).
What happens if a POW dies?
Article 120 requires a State to establish a Graves Registration Service in the event that a POW dies. The grave must be marked and recorded by the registration service. It does not have to be called a “graves registration service” and it does not have to be vested in the government – it could be the responsibility of the armed forces for example – but it must be official (para 4629). The Commentary notes that “In practice, the majority of States have permanent military graves services which are responsible in peacetime for the maintenance of the graves of members of armed forces who have fallen in battle” (para 4630). In this section, the ICRC Commentary is probably the most explicit in its urging for preparation before conflict– “In certain circumstances, the Parties ought to establish the graves registration service even prior to the commencement of hostilities, … it is too late to establish it part way through the conflict or, worse, at the conclusion of the conflict. For this reason, there is a practical need to make preparations for a graves registration service in peacetime” (para 4631).
How do you address a POW’s civilian capacity?
Article 14 provides that POWs retain their civilian capacity meaning that they can exercise their civil rights. As the ICRC Commentary notes, “Article 54 safeguards the right of prisoners to obtain medical certificates for injuries sustained at work; Article 68 regulates compensation claims with respect to such injuries; Article 77 contains an obligation on the Detaining Power not just to allow but to provide facilities for the preparation, execution and transmission of legal documents; and Article 120 contains regulations on the drawing up and transmission of prisoners’ wills” (para 1694). For example, “During an extended and, notably, unknown duration of captivity, prisoners of war may wish to exercise rights with respect to family matters, such as marrying or divorcing, adopting or arranging guardianship of a child or preparing a will” (para 1699). Preparation must be made to enable these civil legal tasks and documents. It is not the responsibility of the detaining power to create wills and other legal documents, but it must facilitate such arrangements. “The preparation could include, for example, providing access to stationery, court papers, computer systems and the internet and allowing prisoners to consult relevant officials” (para 3387).
GCIII provides that a number of steps be taken as soon as an international armed conflict breaks out, including notifying the enemy of its laws and regulations on a range of issues (para 58). Those laws and regulations should have been adopted or promulgated well before conflict breaks out. Indeed, you would be strongly advised to put in place arrangements for all the matters addressed in this blog before any conflict. GCIII can fully assist you (as government officials and military commanders) to prepare for capturing and interning POWs – almost all the practical measures are regulated or foreseen in its provisions. If you do not prepare, you might be in violation of your obligations to respect and ensure respect for IHL, and specifically for GCIII, and you will almost certainly place the well-being of individuals at risk. It is time to (re-)read GCIII and the ICRC Commentary to ensure that preparations are made in advance, and indeed in peacetime.
Asanga Tilakaratne, Peter Harvey, Sunil Kariyakarawana and Andrew Bartles-Smith, GCIII Commentary: A Buddhist Perspective on the Treatment of Prisoners of War
Lawrence Hill-Cawthorne, Common Article 1 and State Responsibility