Behind Enemy Lines: The Protection Gap Between POWs and Captured Nonstate Actors Under International Humanitarian Law

[Alexandria Virginski is a legal scholar whose research explores the intersections of human rights, international law, and security. She holds a JD from the University of Wisconsin Law School and BA degrees in International Relations and Spanish from Michigan State University]

The number of armed conflicts globally has reached levels not seen since World War II, and the intensity of conflicts has increased as well. According to the International Institute for Strategic Studies (IISS) Armed Conflict Survey 2025, the world has experienced a 23% increase year-on-year in the number of conflicts. A significant driver of this trend is the nonstate actor, operating outside of the direct control of a government or state, which has come to dominate contemporary warfare. Historically, international law has taken a state-centrist approach: treating states as the principal unit of analysis. Not until the mid-1990s have a handful of provisions even been applied to mixed conflicts between state and nonstate actors, classified under the umbrella term of non-international armed conflicts (NIACs). Even with these advancements, jurisprudence has largely concentrated on the humanitarian implications of NIACs through trials at international tribunals like the International Criminal Court (ICC). However, in order to prevent human rights abuses from occurring against nonstate actors engaged in war, the international community must re-examine the current jurisprudence on the law of armed conflict with respect to NIACs.

The most vulnerable people in war are often those who fall into the hands of opposing forces, commonly referred to as “prisoners of war” (POWs).  Yet, the law of armed conflict distinguishes between state and nonstate forces, availing state combatants of the protections accompanying POW status, and frequently leaving nonstate fighters labeled as “captured opposing forces,” which leaves these fighters vulnerable to abuse against the backdrop of war animosity. The history of POWs begins with the history of war itself. In primitive times, captured combatants became the personal property of the captor and were forced into indentured servitude. This lasted until the Middle Ages when the concept of ransom was developed, which allowed POWs to be exchanged for money, gold, or other valuable assets. POWs who were unable to secure their freedom through payment were frequently killed. It was not until the 17^th and 18^th centuries when the first modern development in the treatment of POWs occurred: the distinction between civilian and combatant.

Over time, these ideas evolved into international laws governing the treatment of POWs, including the Geneva Conventions. During World War I, the First and Second Geneva Conventions, along with the Hague Conventions, established standards for the humane treatment of wounded soldiers and prisoners of war. By World War II, these conventions provided a stronger legal framework for POW treatment, although compliance varied significantly with many subjugated to torturous interrogation tactics, severe mistreatment, starvation, and death. These experiences highlighted the need for stronger protections, leading to the expansion of the Geneva Conventions after the war. today, more than 190 states have ratified the Geneva Conventions, establishing internationally recognized standards for the treatment of prisoners and other protected persons during armed conflict.

The Third Geneva Convention specifically defines who qualifies as a prisoner of war (POW) and outlines the rights and protections afforded to such individuals. Article 4 extends POW status not only to members of a state’s armed forces but also to certain militias, volunteer corps, and organized resistance movements. To qualify, these groups must be commanded by responsible leaders, wear a recognizable distinctive sign, carry arms openly, and conduct operations in accordance with the laws and customs of war. While these provisions acknowledge that nonstate actors can participate in armed conflict, many modern nonstate armed groups fail to meet these requirements because they often do not wear identifiable uniforms or insignia, conceal their weapons until attacks are carried out, and engage in practices such as hostage-taking or attacks on civilians. Consequently, members of such groups are frequently denied POW status, making the question of their legal protections one of the most debated issues in contemporary international humanitarian law.

Scholarly Debate Regarding the Treatment of State Versus Nonstate Actors Under the Conventions

There is scholarly divergence regarding the nonstate armed groups who fail to meet the requirements for POW classification under the Third Geneva Convention and whether they should be treated as civilian protected persons under the Fourth Geneva Convention. Under Article 4 of the Fourth Geneva Convention, protected persons include:

“those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”  

Scholars supporting this view cite the ICRC Commentary to the Fourth Geneva Convention, which clarifies that the drafters did not intend to leave any group of individuals uncovered. It is important to note that the Commentary was published in 1952, and thus, one potential counterargument is that nonstate armed forces like those seen in modern day warfare such as the IRA, Al Qaeda, ISIS, Hamas, and similar organizations did not exist at the time of drafting, therefore they should remain excluded from the classification of protected persons.

Even if the Fourth Geneva Convention applied to nonstate armed forces, many members of these groups would still be excluded from protected person status based on their nationality.  Hamas, for example, would not be entitled to protected person status if captured in Palestine if they are citizens of Palestine. Similarly, they would not be protected persons if picked up by Israel, because they are nationals of a co-belligerent state that has “normal” diplomatic relations with Palestine. Normal diplomatic representation is defined in the 1952 commentary to the Convention as requiring the state to have at least one diplomatic representative accredited to the belligerent state who has the freedom to make diplomatic representations. In the context of Israel’s occupation of Palestine, the question of normal diplomatic representation is under heightened scrutiny. However, there are several representatives of the state, just one of which is the Palestine Liberation Organization (PLO) that represents Palestinians at international institutions. Because of this, Hamas would not likely fall under the protected persons classification.

Aside from this, neither the drafting history nor the Fourth Geneva Convention itself suggests that the drafters would extend protected person status to those who did not qualify for prisoner of war status. In fact, Article 5 states the opposite:

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Accordingly, it is unlikely that nonstate forces like Hamas would fall under the provisions governing the treatment of protected persons. However, for those scholars that apply a literal interpretation to the text and believe that the drafters did not intend to leave any individual unclassified, nonstate forces like Hamas, for example, would likely be classified under protected person status. This is because they do not fall under the category of civilians (they bear arms and are direct participants in conflict) and at the same time, they do not meet the requirements to be state combatants under the Third Geneva Convention’s Article 4(2) requirements for POW status. Thus, under this view, nonstate armed groups like Hamas would be considered protected persons. Although this classification is afforded fewer protections than POWs, it could provide these groups with a certain degree of protection against abusive treatment during captivity.

Protections Afforded to POW, Protected Persons and Captured Opposing Forces Designations

POWs, protected persons, and captured opposing forces are afforded different protections according to their classification with POWs benefitting from the strongest protections and captured opposing forces receiving the weakest ones. The Third Geneva Convention provides a compelling description of the protections afforded to POWs and the manner in which enemy forces must go about ensuring their fair and humane treatment. Notably, the Convention’s 143 articles govern the treatment of interned POWs ensuring that they are adequately housed and receive sufficient food, clothing, and medical care. Its provisions also establish guidelines on labor, discipline, recreation, and criminal trial. Additionally, they must be evacuated to a safe area so as not to be purposefully targeted during conflict and they may be interrogated, but not tortured, threatened, coerced, nor may they be subject to public curiosity, insults, intimidation or violence. They are also afforded opportunities for religious worship and studies, and have the ability to conduct personal correspondence. Thus, POWs are entitled to extensive protections that ensure their fair and humane treatment while in captivity.  Any unlawful act or omission by the detaining power causing death or seriously endangering the health of a POW in its custody is strictly prohibited and regarded as a serious breach of a state’s obligations under the Convention.

These protections differ from those afforded to protected persons. Protected persons typically include doctors, nurses, technicians, and other personnel like staff of the National Red Cross Societies that are caring for the wounded and sick. This fact undermines some scholars’ argument that nonstate armed forces should fall into this category, as these groups take up arms and are actively engaged in the conflict, which both harms—rather than cares for—those invocated in the conflict. Nevertheless, protected persons may be detained without charge or trial “only if the security of the Detaining Power makes it absolutely necessary.” The necessity standard for detaining a protected person is more restrictive than the classification of “internment” for POWs, however the application is nominal given that the detention of any person would, without question, satisfy the “necessity” requirement in the midst of an ongoing conflict. This alone demonstrates that, despite the rights that protected persons are afforded, they remain subject to a lower standard of treatment than POWs.

Finally, captured opposing forces receive the fewest protections under the Geneva Conventions, as these individuals are frequently classified as unlawful combatants. These fighters are not entitled to POW status, but they do receive certain fundamental rights including: (1) protection from torture or other cruel, inhumane, or degrading treatment or punishment; (2) the right to be treated humanely with respect to their lives and dignity; (3) the right to a fair trial; (4) protection from arbitrary deprivation of life or unlawful attacks against their person; and (5) the right to receive medical care and attention if wounded or sick. However, unlike POWs, they may be physically coerced and can be the subjects of intensive interrogation; similarly, they may be criminally prosecuted by the capturing state for their participation in hostilities, which would otherwise be lawful for a combatant. Furthermore, there is also an affirmative obligation upon states to prevent them from ongoing participating in hostilities, opening the floodgates to indefinite detentions. Based on the foregoing, captured opposing forces who are classified as unlawful combatants arguably receive the weakest protections under the Conventions.

Closing the Protection Gap

The disparity in protections afforded to POWs, protected persons, and captured opposing forces exposes a significant gap in contemporary international humanitarian law. While the Geneva Conventions were drafted with traditional interstate warfare in mind, modern conflicts are increasingly fought between states and organized nonstate armed groups. As a result, many individuals captured during contemporary conflicts fall into a legal gray area in which they are denied POW status while also failing to qualify as protected persons under the Fourth Geneva Convention. Although Common Article 3 and customary international law provide baseline protections, these safeguards are considerably less comprehensive than those afforded to POWs, creating opportunities for inconsistent treatment and abuse.

Rather than continuing to rely on classifications that leave certain categories of captured fighters with diminished protections, states should consider adopting an additional protocol to the Geneva Conventions establishing a uniform detention regime for all individuals captured during armed conflict. Such a framework would not necessarily confer full POW status or combatant immunity on members of nonstate armed groups. Instead, it would guarantee core POW-equivalent protections—including humane treatment, adequate food and medical care, protection from coercive interrogation practices, communication with family members, and independent monitoring by organizations such as the International Committee of the Red Cross—regardless of the detainee’s legal classification. States would retain the ability to prosecute members of nonstate armed groups for criminal conduct or unlawful participation in hostilities, while ensuring that detention itself remains consistent with the humanitarian objectives of international law.

This approach would preserve the distinction between lawful and unlawful combatants while closing the protection gap that currently exists for captured opposing forces. More importantly, it would more strongly reflect the realities of twenty-first century warfare and reaffirm the fundamental principle underlying the Geneva Conventions: that all persons who fall into enemy hands must be treated with dignity and humanity, regardless of the side for which they fought. As non-international armed conflicts continue to dominate the global security landscape, strengthening protections for all captured persons is not merely a policy preference but an increasingly necessary evolution of international humanitarian law.

Photo by Eleni Afiontzi on Unsplash