SYMBIOSIS LAW SCHOOL HYDERABAD

(Constituent of Symbiosis International (Deemed University), Pune)

PUBLIC INTERNATIONAL LAW

TREATMENT OF PRISONERS OF WAR

SUBMITTED BY

ADITI SHRIVASTAVA (16010324203)

ANUSHKA RASTOGI (16010324214)

MIHIR GANACHARI (16010324235)

DIVISION C

IN

MARCH, 2019

UNDER THE GUIDANCE OF

Mrs. Ambrina Khan

 PUBLIC INTERNATIONAL LAW

CERTIFICATE

The project entitled “Treatment of Prisoners of War” is submitted to Symbiosis Law School,
Hyderabad for Public International Law as part of internal assessment. The project is our
original work, carried out under the guidance of Mrs. Ambrina Khan from December 2018 to
March 2019. The research work has not been submitted elsewhere for award of any publication
or degree.
The material borrowed from other sources that has been incorporated in this work has been
duly acknowledged.
We understand that we could be held responsible and accountable for plagiarism, if any,
detected later on.

-ADITI SHRIVASTAVA
-ANUSHKA RASTOGI
-MIHIR GANACHARI
(Signature of the candidate)

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ACKNOWLEDGEMENT

This project is a result of dedicated efforts and we are gratified that Symbiosis Law School,
Hyderabad gave us an opportunity to prepare this project on “Treatment of Prisoners of War”
We would like to take this opportunity to thank our Faculty for Public International Law, Mrs.
Ambrina Khan for her consultative help and constant guidance.

The completion of this project would have not been possible without the constant
encouragement by our families and friends. We would like to thank them for helping us finish
this project in the stipulated time.

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TABLE OF CONTENTS

1. ABSTRACT………………………………………………………………….. 05

2. RESEARCH METHODOLOGY…………………………………………... 06

3. RESEARCH OBJECTIVES…………………………………………………06

4. RESEARCH QUESTIONS…………………………………………………. 06

5. INTRODUCTION……………………………………………………………07

a. Circumstances when a situation is termed as a ‘war’

b. A brief Introduction about war crimes

c. Meaning of Prisoner of War

6. THE HAGUE CONVENTION……………………………………………….09

a. Laws and customs of war on land

b. The transition from the Hague Convention to the III Geneva Convention

7. INTERNATIONAL HUMANITARIAN LAW………………………………13

a. The Geneva Convention

b. The Third Geneva Convention

c. Rights and Obligations regarding a Prisoner of War under the

Geneva Conventions

8. THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN

OR DEGRADING TREATMENT OR PUNISHMENT……………………..18

9. ROLE OF INTERNATIONAL COMMITTEE OF THE RED CROSS…….20

10. SUGGESTIONS…………………………………………………………………22

11. CONCLUSIONS…………………………………………………………………22

12. REFERENCES…………………………………………………………………. 24

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ABSTRACT

Treatment of Prisoners of War

By- Aditi Shrivastava, Anushka Rastogi, Mihir Ganachari.

History bears witness to the atrocities suffered by the prisoners of war. However, early history
shows no recognition of the status of such prisoners. The principles for the treatment of
prisoners of war have significantly evolved through the ages starting from the enslavement of
enemy soldiers in Europe around the 17th century to the proliferation of numerous conventions
aimed at combating these atrocities as well as protecting the prisoners of war.

The paper aims at understanding the consequences of the colossal issue that the inhumane
treatment of prisoners of war has put forth before the international community while analysing
the conventions and the role of international organisations to combat their grievances.
Furthermore, the paper aims to critically review the Hague convention and the Geneva
Convention (III) to understand the efforts made to curb the crimes and conflicts caused by
warfare, their innovations and deficiencies. The researchers will further study the role played
by ICRC in mitigating the injustices as well as attempt to understand the atrocities.

The paper aims at addressing the significant gaps that exist regarding the protection of the
prisoners of war by means of suggestions.

KEYWORDS: Geneva Convention, Hague Convention, ICRC, international organisation,

prisoners of war.

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RESEARCH METHODOLOGY

The researchers have utilized qualitative data. The researchers adopted a doctrinal mode of
research for this paper. The facts and laws relevant to this topic have been acquired from
different books and journals. The researchers have mainly depended on these laws, arguments
by different scholars and analysis of these together to arrive at conclusions. Apart from these,
the other sources of data collection will be different articles on the newspapers and internet
regarding this topic

RESEARCH OBJECTIVES

1. To understand the concept of war crimes and the issue of treatment of prisoners of war
arises out of armed conflict.
2. To understand the colossal issue of treatment of prisoners of war and the human right
violation suffered by them that is put forth before the international organisations
through various conventions.
3. To study the role played by ICRC in order to mitigate the crisis of deprivation of liberty.
4. To give suitable suggestions for the gaps that remain in order to provide necessary
protection to prisoners of war.

RESEARCH QUESTIONS

1. How are the prisoners of war required to be treated as given under the Hague
Convention, 1907?
2. What circumstances led to the subsequent shift from the Hague Convention to the
Geneva Convention?
3. How does the Geneva Convention provide for protection of Prisoners of War?
4. What are the gaps that exist regarding the protection of the prisoners of war?
5. What role has ICRC played in strengthening the International Humanitarian Law?

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INTRODUCTION

In 1864, as a result of the pioneering work of Henry Dunant who had been appalled by the
brutality of the battle of Solferino five years earlier, the Geneva Convention for the amelioration
of the conditions of the wounded in the armies in the field was adopted. This brief instrument
was revised in 1906. In 1868, the declaration of St. Petersburg prohibited the use of small
explosives or incendiary projectiles. The laws of war were codified at the Hague Conferences of
1899 and 1907.

CIRCUMSTANCES WHEN A SITUATION IS TERMED AS A ‘WAR’

War is a state of armed conflict between states, governments, societies, and informal paramilitary
groups such as mercenaries, insurgents, and militia. It is generally characterized by extreme
violence, aggression, destruction, mortality, using regular or irregular military forces.

An act of war is an action by one country against another with the intention to provoke a war or
an action that occurs during a declared war or an armed conflict between military forces of any
origins.1

There are many types of wars, namely:

 Biological Warfare – use of biological weapons, i.e. new viruses or diseases spread for
annihilation of the masses.
 Chemical Warfare – Using chemicals like poison gas during war.
 Cyberwarfare – Involves action taken by states or entities to hack and damage the
information systems of their enemies.
 Civil War – Perhaps the most well known type, it is a type of war where forces belonging
to the same nation or political entity have a war.
 Insurgency – It is a rebellion against authority, hen those taking part in the rebellion are
not recognised as belligerents (lawful combatants).
 Nuclear Warfare – A war in which nuclear weapons are the primary or main form to
achieve capitulation.

1
Malcolm N. Shaw, International Law (6 ed. 2008).

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A BRIEF INTRODUCTION ABOUT WAR CRIMES.

A war crime is an act that constitutes a serious violation of the laws of war that gives rise to
individual criminal responsibility. Examples of war crimes include intentionally killing civilians
or prisoners, torturing, destroying civilian property, taking hostages, performing a perfidy,
raping, using child soldiers, pillaging, declaring that no quarter will be given, and seriously
violating the principles of distinction and proportionality, such as strategic bombing of civilian
populations.

MEANING OF PRISONER OF WAR (POW).

A prisoner of war is a person, combatant or non-combatant, who is held in custody by a

belligerent power during or immediately after an armed conflict.

The general idea behind having prisoners of war is for many legitimate and illegitimate reasons,
such as isolating them from the enemy till on the field, punishing them for war crimes, using
them for labour work, or collecting political and military information from them.

The development and origin of the concept of prisoner of war happened to be the famous Roman
gladiators. They were used for amusement of the masses by pitting them against other gladiators.
However, the concept has existed long before the gladiators of Rome were captured. Even the
Nubian slaves of Egypt were prisoners of war used for pleasures, and were made to do hard
labour.

Although, in modern times, the 1648 Peace of Westphalia which ended the Thirty Year’s War,
and established that every prisoner of war must be released without any ransom at the end of
hostilities and be allowed to return to their homelands.

There also evolved “the right of parole”, French for ‘discourse’, wherein a captured officer
surrendered his sword and gave his word as a gentleman in exchange for privileges.2

2
Malcolm N. Shaw, International Law (6 ed. 2008).

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HAGUE CONVENTION

The Hague Conventions of 1899 and 1907 were a sequential order of international multilateral
treaties and declarations which constituted as one of the first formal statements regarding the
laws of war and war crimes that remained largely undiscussed. Through the body of an
unbiased international law that was heavily relied on the Lieber Code that aimed at controlling
the conduct of soldiers during war time, the convention addressed areas of disarmament,
the laws of war and war crimes.3

LAWS AND CUSTOMS OF WAR ON LAND

The convention respecting the Laws and Customs of War on Land contains provisions that are
to be used during all wars between any of the signatories, specifically providing for the
treatment of prisoners of war and the wounded. Furthermore, it also forbids the use of poison,
killing of enemies who surrender, looting and bombarding towns and many other crimes
against humanity at times of war.

Treatment of prisoners of war

The voluminous convention provide for the humane treatment of prisoners of war and the
powers of the hostile government capturing them.4 The Prisoners of war cannot be confined
except in instances that make it mandatory to take such steps in order to maintain safety and
such indispensable needs persist, however they may be interned and bound not to go beyond
certain fixed limits.5

Assigning of tasks to prisoners of war and payments

Other than excessive tasks or the tasks that involve connection to operations of war, the prisoner
may be used by the state to carry out certain labour as per the aptitude. Such tasks be in public,
private or independent sphere at the rates that much be similar to those of national forces or
according to the work executed. The wages paid must be branched out towards improving their
position and the rest must be given to them on release6. The hostile Government must be the
one responsible or the maintenance of the prisoners of war with regards to boarding, loading
and clothing like the troops of that country even in the absence of any agreement between the

3
Michael Haas, International Human Rights: A Comprehensive Introduction (2014).
4
Article 4, Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations
concerning the Laws and Customs of War on Land. The Hague, 18 October 1907.
5
Id. Art. 5
6
Id. Art. 6

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belligerents and the government.7 Additionally, prisoners of a rank must be paid similar to the
officers of the corresponding rank of the hostile government which shall later be reimbursed
by the government of the state the prisoner of war belong to.8

Liberty on parole

If the government of the hostile government permits parole, the prisoners of war many be set
at liberty.9 However, the liberty on parole cannot be compelled on a prisoner of war, neither
does it become the obligation to set the prisoners of war at liberty on their request.10 Any
prisoner of war who is set at liberty on parole found bearing arms against the government who
he has pledged his honour to or any of its allies, is said to have forfeited his rights as a prisoner
of war and can be brought before the courts.11

Inquiry office

An inquiry office must be set up in all of the belligerent States, and, when necessary to provide
information regarding the inquiries about the prisoners of war in respect of transfers, releases,
escapes, deaths and admissions into the hospital to keep a track of all the prisoners of all and
to ensure a safe return after the conclusion of peace. The personal belongings of such prisoners
found must be kept with the inquiry office and forwarded to the concerned individuals. 12 The
privileges of inquiry officers allow letters, money orders, valuables, parcels, gifts or reliefs
despatched for or by the prisoners of war to be exempted from all postal duties.13

Relief societies

Relief societies are to carry out charitable efforts, received from the belligerents, which must
be constituted as per requirements of the law, in order to carry out humane tasks within military
and administrative bounds. For prisoners of war, which are properly constituted in accordance
with the laws of their country and with the object of serving as the channel for charitable effort
shall receive from the belligerents, for themselves and their duly accredited agents every
facility for the efficient performance of their humane task within the bounds imposed by
military necessities and administrative regulations. In order to distribute relief, agents of these

7
Id. Art. 7.
8
Id. Art. 17.
9
Id. Art. 10.
10
Id. Art. 11.
11
Id. Art. 12.
12
Id. Art. 14.
13
Id. Art. 16.

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societies must be allowed in the places of confinement of prisoners of war with proper
authorisation.14

Miscellaneous provisions

Laws and regulation of the army of the state in whose power they are under must be applied to
the prisoners of war and any act of insubordination must be subject to severe measures. The
status of liability against escaped soldiers as also been discussed.15

Non- military personnel such as newspaper correspondents and reporters falling in the arms of
the enemy are entitled to be treated as prisoners of war as long as they are certified of
accompanying the military from the authorities.16

As long as the prisoners of war comply with all the measures and orders issued by the military
authorities, they are under complete liberty to exercise their own religion.17
Provisions have also been made to secure procedures of drawing wills18, death certificates and
burial rights of the prisoners of war as that of the soldiers of the national army of the capturing
government.
As soon as the war ends and peace commences, reparations and reparations must be made
available to the prisoners of war at the earliest.19

On being questioned regarding the name and rank, every prisoner of war must disclosed the
information truly. Any infringement of this rule must lead to curtailing advantages that are
given to prisoners of his class. 20

SHIFT FROM HAGUE CONVENTION TO GENEVA CONVENTION

The principles regarding the treatment of prisoners of war as were provided in the Hague
Regulations of 1899 and 1907 revealed several deficiencies and lack of precision during WW-
II. However certain special agreements between belligerents helped overcome the deficiencies.
Furthermore, ICRC In 1921, held that there was a need to develop a special convention
specifically for the treatment of prisoners of war. ICRC drew a draft convention which was not

14
Id. Art. 15.
15
Id. Art. 8.
16
Id. Art. 13.
17
Id. Art. 18.
18
Id. Art. 19.
19
Id. Art. 20.
20
Id. Art. 9.

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aimed at replacing the provisions of the Hague convention but to support and complete them
but only completes the provisions of the Hague regulations 21

In the light of the Recognition that, in the instances of extreme war conditions, it is the duty of
every power to mitigate the circumstances that arise through such wars. Mitigation is necessary
to reduce the inevitable rigours as well as to alleviate the positions of those considered as
prisoners of war. Various plenipotentiaries had been appointed in order to develop principles
which were inspired the international conventions of The Hague, i.e., the Convention
concerning the Laws and Customs of War and the Regulations. 22

21
Treaties, States parties, and Commentaries - Geneva Convention (III) on Prisoners of War, 1949, Ihl-
databases.icrc.org (2019), https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/375?OpenDocument (last
visited Mar 27, 2019).
22
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949

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INTERNATIONAL HUMANITARIAN LAW

International law seeks to regulate the conduct of hostilities (jus in bello). There exist principles
for the same, some examples of this are treatment of prisoners of war, civilians in occupied
territory, sick and wounded persons, prohibited methods of warfare and human rights in
situations of conflict.23

The subject of international humanitarian law was initially termed the laws of war and then the
laws of conflict. More recently, it has been called international humanitarian law. Although
international humanitarian law is primarily derived from a number of international
conventions, some of these represent in whole or in part rules of customary international law,
and it is possible to say that a number of customary international law principles exist over and
above conventional rules24, although international humanitarian law is one of the most highly
codified parts of international law.

THE GENEVA CONVENTION

A number of conventions in the inter- war period dealt with rules concerning the wounded and
sick in the armies in the field and prisoners of war.25 Such agreements were replaced by the
Four Geneva ‘Red Cross’ Conventions of 1949 which dealt respectively with the amelioration
of the condition of wounded, sick and shipwrecked members of the armed forces at sea, the
treatment of prisoners of war and the protection of civilian persons in time of war.

The foundation of Geneva Conventions system id the principle that persons not actively
engaged in warfare should be treated humanely.26 A number of practices ranging from the
taking of hostages to torture, illegal executions and reprisals against persons protected by the
Convention are prohibited, while series of provisions relate to more detailed points such as the
standard of care of prisoners of war and prohibition of deportations and indiscriminate
destruction of property in occupied territory.

The International Court of Justice has noted that the ‘Law of Hague’, dealing primarily with
inter- state rules governing the use of force or the ‘laws and customs of war’ as they were
traditionally termed, and the ‘Law of Geneva’, concerning the protection of persons from the

23
Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 2 nd edn, Cambridge,
2010.
24
T. Meron, ‘ Revival of Customary Humanitarian Law’, 99 AJIL, 2005, p. 817.
25
See eg. The 1929 Conventions, one revising the 1864 and 1906 instruments on wounded and sick soliders, the
other on the treatment of prisoners of war.
26
Article 1(2), Additional Protocol I, 1977.

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effects of armed conflicts, ‘have become so interrelated that they are considered to have
gradually formed on single complex system known today as international humanitarian law’27.

THE THIRD GENEVA CONVENTION OF 1949

The Third Geneva Convention of 1949 is concerned with prisoner of war and consists of a
comprehensive code centred upon the requirement of humane treatment in all circumstances.

The definition of prisoners of war is in Article 4, however it is of particular importance since

it has been regarded as the elaboration of combatant status. It covers members of the armed
forces of a party to the conflict (as well as members of militias and other volunteer corps
forming part of such armed force) and members of other militias and volunteer corps, including
those of organised resistance movements, belonging to a party to the conflict providing the
following conditions are fulfilled:

a) Being commanded by a person responsible for his subordinates;

b) Having a fixed distinctive sign recognisable at a distance;
c) Carrying arms openly;
d) Conducting operations in accordance with the laws and customs of war.28

This article reflected the experience of the Second World War, although the extent to which
resistance personnel were covered was constrained by the need to comply with the four
conditions. Since 1949, the use of guerrillas spread to the Third World and the decolonisation
experience. Accordingly, pressures grew to expand the definition of combatants entitled to
prisoner of war status to such persons, who as practice demonstrated rarely complied with the
four conditions. States facing guerrilla action, whether the colonial powers or others such as
Israel, objected. Articles 43 and 44 of Protocol I, 1977, provide that combatants are members
of the armed forces of a party to an international armed conflict. 29 Such armed forces consist
of all organised armed units under an effective command structure which enforces compliance
with the rules of international law applicable in armed conflict. Article 44(3) further notes that
combatants are obliged to distinguish themselves from the civilian population while they are
engaged in an attack or in a military operation preparatory to an attack. When an armed
combatant cannot so distinguish himself, the status of combatant may be retained provided that

27
The Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports, 1996, p. 226,
256.
28
G. I. A. D. Draper, ‘The Status of Combatants and the Question of Guerilla Warfare’, 45 BYIL, 1971, pp. 173,
186.
29
Article 1(4) of Protocol I.

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arms are carried openly during each military engagement and during such time as the
combatant is visible to the adversary while engaged in a military deployment preceding the
launching of an attack. This formulation is clearly controversial and was the subject of many
declarations in the vote at the conference producing the draft.30

Article 5 also provides that where there is any doubt as to the status of any person committing
a belligerent act and falling into the hands of the enemy, ‘such person shall enjoy the protection
of the present Convention until such time as their status has been determined by a competent
tribunal’.31This formulation was changed somewhat in article 45 of Protocol I. This provides
that a person who takes part in hostilities and falls into the power of an adverse party ‘shall be
presumed to be a prisoner of war and therefore shall be protected by the Third Convention’.
The term ‘unlawful combatant’, therefore, refers to a person who fails the tests laid down in
articles 43 and 44, after due determination of status, and who would not be entitled to the status
of prisoner of war under international humanitarian law. Such a person, who would thus be a
civilian, would be protected by the basic humanitarian guarantees laid down in articles 45(3)
and 75 of Protocol I and by the general principles of international human rights law in terms of
his/her treatment upon capture. However, since such a person would not have the status of a
prisoner of war, he would not benefit from the protections afforded by such status and would
thus be liable to prosecution under the normal criminal law.32

The framework of obligations covering prisoners of war is founded upon ‘the requirement of
treatment of POWs as human beings’, while ‘At the core of the Convention regime are legal
obligations to keep POWs alive and in good health.’33 Article 13 provides that prisoners of war
must at all times be humanely treated and must at all times be protected, particularly against
acts of violence or intimidation and against ‘insults and public curiosity’.34 This means that
displaying prisoners of war on television in a humiliating fashion confessing to ‘crimes’ or
criticising their own government must be regarded as a breach of the Convention.35 Measures
of reprisal against prisoners of war are prohibited. Article 14 provides that prisoners of war are

30
H. Verthy, Gu´errilla et Droit Humanitaire, 2nd edn, Geneva, 1983.
31
British Manual of Military Law, Part III, The Law of Land Warfare, London, 1958, para. 132, note 3, and the
US Department of Army, Law of Land Warfare, Field Manual 27–10, 1956, para. 71(c), (d).
32
. A. Cassese, International Law, 2nd edn, Oxford, 2005, pp. 409–10,
33
Eritrea–Ethiopia Claims Commission in its Partial Award, Prisoners of War, Ethiopia’s Claim 4, 1 July 2003,
paras. 53 and 64
34
Article 11 of Protocol I.
35
See 2003 Gulf War: see the report of the condemnation by the International Committee of the Red Cross,
http://news.bbc.co.uk/ 1/hi/world/middle east/2881187.stm.

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entitled in all circumstances to respect for their persons and their honour.36 Prisoners of war
are bound only to divulge their name, date of birth, rank and serial number. Article 17 provides
that ‘no physical or mental torture, nor any other form of coercion, may be inflicted . . . to
secure from them information of any kind whatever. Prisoners of war who refuse to answer
may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any
kind.’ Once captured, prisoners of war are to be evacuated as soon as possible to camps situated
in an area far enough from the combat zone for them to be out of danger,37 while article 23
stipulates that ‘no prisoner of war may at any time be sent to, or detained in, areas where he
may be exposed to the fire of the combat zone, nor may his presence be used to render certain
points or areas immune from military operations’.38 Prisoners of war are subject to the laws
and orders of the state detaining them.39 They may be punished for disciplinary offences and
tried for offences committed before capture, for example for war crimes. They may also be
tried for offences committed before capture against the law of the state holding them.40 Other
provisions of this Convention deal with medical treatment, religious activities, discipline,
labour and relations with the exterior. Article 118 provides that prisoners of war shall be
released and repatriated without delay after the cessation of hostilities. The Convention on
prisoners of war applies only to international armed conflicts, but article 3 (which is common
to the four Conventions) provides that as a minimum ‘persons . . . including members of armed
forces, who have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated humanely’.

RIGHTS AND OBLIGATIONS REGARDING A PRISONER OF WAR UNDER THE

GENEVA CONVENTIONS

There are 143 articles in GC III, which relate to the rights of prisoners of war, and the
corresponding obligations of the detaining power. The approach of the laws of war is to realize
the protection of those vulnerable in times of conflict, including civilians and prisoners of war.
In this respect, most of the obligations are on the detaining state.41

36
Article 75 of Protocol I.
37
Article 19.
38
See The Economist, 26 January 1991, p. 24.
39
Article 82, Geneva Convention III.
40
US v. Noriega 746 F. Supp. 1506, 1529 (1990); 99 ILR, pp. 143, 171.
41
Priya Pillai, A case for Abhinandan Varthaman: The Geneva Conventions on Treatments and Release of
Prisoners of War, Bar and Bench, retrieved on 27 th February , 2019.

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GC (III) has detailed provisions as regards the treatment and protection of prisoners of war.
The basic principles for the treatment of prisoners are established in Part II (Articles 12 – 16).
Article 13, on humane treatment, stipulates that prisoners of war “must at all times be
protected, particularly against acts of violence or intimidation and against insults and public
curiosity.”

Reprisals against prisoners of war are prohibited. In addition, there must be the provision of
medical attention (Article 15), and equal treatment of all with no adverse distinction on the
basis of race, nationality, religious belief etc. (Article 16). Arguably, the circulation of videos
of the prisoner, or any form of humiliating treatment, would fall foul of Article 13.

At the commencement of captivity, when prisoners may be questioned in a language they

understand, Article 17 details the information required to be divulged by a prisoner – “only his
surname, first names and rank, date of birth, and army, regimental, personal or serial number,
or failing this, equivalent information.” This is the only information required.

“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners
of war to secure from them information of any kind whatever. Prisoners of war who refuse to
answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous
treatment of any kind.”

There are other extremely detailed provisions that encompass all aspects of captivity and
possible situations in detention, including the conditions of captivity, food, medical treatment,
labour, correspondence, discipline, etc. These provisions are meant to regulate and protect the
condition of prisoners, till such time as repatriation occurs, and are a comprehensive legal
regime.

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THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR

DEGRADING TREATMENT OR PUNISHMENT

Article 5 of the United Nations Universal Declaration of Human Rights ("UDHR") states that
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment” Since the adoption of the UDHR on December 10, 1948, this provision has been
reproduced in several other international human rights instruments.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment is regularly celebrated as one of the most successful international human rights
treaties.42 Its adoption by the United Nations in 1984 culminated an effort to outlaw torture that
began in the aftermath of atrocities of World War II. Nations that ratified the Convention
consented not to intentionally inflict “severe pain or suffering, whether physical or mental,” on
any person to obtain information or a confession, to punish that person, or to intimidate or
coerce him or a third person.
This convention is a major legal step towards ensuring that prisoners of war are not tortured by
detaining parties.
The Third Geneva Convention and Activities amounting to Torture
The Third Geneva Convention prohibits torture under several Articles, the same are mentioned
below:
Article 3 (1) a: Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated humanely without any
adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other
similar criteria. To this end, the following acts are and shall remain prohibited at any time and
in any place whatsoever with respect to the above-mentioned persons:
a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment
and torture;
Article 17: No physical or mental torture, nor any other form of coercion, may be inflicted on
prisoners of war to secure from them information of any kind whatever.
Article 87: Collective punishment for individual acts, corporal punishment, imprisonment in
premises without daylight and, in general, any form of torture or cruelty, are forbidden.

42
Oona A.Hathaway , Do Human Rights Treaties Make a Difference?, Yale Law Journal 111 (2002): 1935-
2042

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Article 130: Grave breaches to which the preceding Article relates shall be those involving
any of the following acts, if committed against persons or property protected by the
Convention: wilful killing, torture or inhuman treatment, including biological experiments,
wilfully causing great suffering or serious injury to body or health, compelling a prisoner of
war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the
rights of fair and regular trial prescribed in this Convention.

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ROLE OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS

The first world war had been witnessed as a fundamental break from the past giving
consideration to the number of nations involved in the conflict, the duration for which the
conflict lasted and the amount of resources that had been deployed, in comparison to any other
conflict. The effect that the violence inflicted at that time, still bare a consequence today. Out
of the horrors of the First World War, the Red Cross emerged and stood completely
transformed. Within the first few months of the war, the International Committee of the Red
Cross put together a mechanism of control and operations that remains the cornerstone of its
action today. It dealt with activites regarding tracing missing persons, restoring contact
between prisoners and their families, visiting prison camps, delivering aid and repatriating ex-
detainees. No other conflict has transformed the organization so deeply. 43

The prisoners of war and detainees are protected under the international humanitarian law,
which protects the rights of liberty which may be deprived as a result of armed conflict. The
third Geneva Convention provides a wide range of protection by laying down rights, duties and
detailed rules for their treatment and eventual release. 44

“Detention can take various forms, but the deprivation of liberty inevitably carries costs that
fall on the detainee, their family and the community at large.” 45

The ICRC identified that these costs which are borne both individually and collectively, are
frequently attached with certain financial costs that authorities are not ready to bare on behalf
of these detainees and prisoners of war. As a result of this unwillingness and short-termist
calculation a grave harm is posed not only to the prisoners but also to the future of the societies.
This causes detention to become a part of the problem it was aimed at solving. Therefore, an
objective assessment of the human, social, political and financial costs of detention policies is
imperative as a preventative step. Additionally in the ICRC 903rd Review has analysed the
developments made in practices and policies regarding detention and focus on the array of

43
Confronting the Hell of the Trenches - The ICRC and the First World War, International Committee of the Red
Cross (2018), https://www.icrc.org/en/publication/4362-face-lenfer-des-tranchees-le-comite-international-de-la-
croix-rouge-et-la-premiere (last visited Mar 27, 2019).
44
Prisoners of war and detainees protected under international humanitarian law - ICRC, Icrc.org (2010),
https://www.icrc.org/en/doc/war-and-law/protected-persons/prisoners-war/overview-detainees-protected-
persons.htm (last visited Mar 27, 2019).
45
Detention: Addressing the human cost, International Committee of the Red Cross (2018),
https://www.icrc.org/en/international-review/detention-addressing-human-cost (last visited Mar 27, 2019).

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challenges that are faced while trying to ensure that human dignity is maintained for such
prisoners during detention including special policies regarding overcrowding and aging prison
populations. The review aimed at promoting human dignity while highlighting and throwing
light on the ongoing challenges faced that are associated with detention.

The additional costs relating to financial, social and emotional burden are borne by the families
of those captured as prisoners as a result of incarceration of their loved ones. “These costs can
be conceptualized as investments both in the sustenance of personal relationships and in a
greater social good in the form of assisting with the reintegration of former prisoners.” 46
Regarding the particular issue, the ICRC review drew data collected through various mixed
method studies to synthesise and elucidate the cost that the families of the prisoners have to
bear as a result of the detention. The ICRC has demonstrated the financial, social and emotional
costs that are linked with the capturing and incarceration of a family member are co-related
and many a times supplement each other. Therefore they identified and indicted the necessity
of accounting for them through a holistic framework.

In cases of non-international armed conflicts (NIACs) wherein instances take place relating to
the depravation of liberty is one of the major fields in international humanitarian law (IHL)
that require a strengthening in order to be able to is the protection of persons deemed as
prisoners and detainees. Despite the fact that the Geneva Conventions through numerous rules
and provisions aims at regulating deprivation of liberty in the events of an international armed
conflicts almost every aspect in such regard with absolutely no similar legal regime that can be
applicable in NIAC.47 Therefore, in order to provide the much needed strengthening to the
international humanitarian law in providing protection to the persons deprived of such liberty,
the ICRC along with a few states have been jointly working to facilitate the same since 2011.
Till 2015, the ICRC accelerated towards carrying out consultations furnish the options and
recommendations in order to strengthen the protection provided to the detainee during an armed
conflict. Since then, the objective has moved towards developing a more concreate and
implementable outcomes.

46
Megan Comfort, Tasseli Mckay, Justin Landwehr, Erin Kennedy, Anupa Bir, Christine Lindquist, The costs of
incarceration for families of prisoners, International Committee of the Red Cross (2018).
47
Tilman Rodenhäuser, Strengthening IHL protecting persons deprived of their liberty: Main aspects of the
consultations and discussions since 2011 International Committee of the Red Cross (2018).

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SUGGESTIONS

In the light of all the points mentioned above, the authors would like to give the following
suggestions:

1. Due to the limited definition of ‘Prisoners of War’ the concept is often misused by
detaining parties to avoid compliance with the Third Geneva Convention giving birth
to several controversies. A lot of combatants are not entitled to the status of prisoner of
war and as a result these combatants are detained without compliance with the Third
Geneva Convention making them prone to adverse humane treatment. Therefore, more
clarity to the definition must be given in order to avoid such problems.
2. Torture as mentioned under the Geneva Convention should cover wider range of
activities to ensure that detaining parties do not torture the prisoners of war and violate
their human rights.
3. The conventions must further take into account the financial responsibilities of the
detaining party for the treatment of prisoners of war and the social, human and political
costs that are borne by the prisoner of war, the family members of the person
incarcerated in the act of detaining and depriving a person of their liberty.
4. There must be more clarity regarding the provisions and policies of detention in cases
of non- international armed conflicts in order to preserve the intention of providing
protection to the prisoners of war under the International Humanitarian Law.

CONCLUSION

The Hague Conventions of 1899 and 1907 were a sequential order of international multilateral
treaties and declarations which constituted as one of the first formal statements regarding the
laws of war and war crimes that remained largely undiscussed. Through the body of an
unbiased international law that was heavily relied on the Lieber Code that aimed at controlling
the conduct of soldiers during war time, the convention addressed areas of disarmament,
the laws of war and war crimes.48

The principles regarding the treatment of prisoners of war as were provided in The Hague
Regulations of 1899 and 1907 revealed several deficiencies and lack of precision during WW-

48
Michael Haas, International Human Rights: A Comprehensive Introduction (2014).

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II. However certain special agreements between belligerents helped overcome the deficiencies.
Furthermore, ICRC In 1921, held that there was a need to develop a special convention
specifically for the treatment of prisoners of war.

The Third Geneva Convention of 1949 is concerned with prisoner of war and consists of a
comprehensive code centred upon the requirement of humane treatment in all circumstances.
The definition of prisoners of war is in Article 4, however it is of particular importance since
it has been regarded as the elaboration of combatant status

The Convention on prisoners of war applies only to international armed conflicts, but article 3
(which is common to the four Conventions) provides that as a minimum ‘persons . . . including
members of armed forces, who have laid down their arms and those placed hors de combat by
sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely’

The approach of the laws of war is to realize the protection of those vulnerable in times of
conflict, including civilians and prisoners of war. In this respect, most of the obligations are on
the detaining state.49

GC (III) has detailed provisions as regards the treatment and protection of prisoners of war.
The basic principles for the treatment of prisoners are established in Part II (Articles 12 – 16).
Article 13, on humane treatment, stipulates that prisoners of war “must at all times be
protected, particularly against acts of violence or intimidation and against insults and public
curiosity.” The Third Geneva Convention also prohibits torture under several Articles like
Article 3(1) a, Article 17, Article 87 and Article 130.

Out of the horrors of the First World War, the Red Cross emerged and stood completely
transformed. Within the first few months of the war, the International Committee of the Red
Cross put together a mechanism of control and operations that remains the cornerstone of its
action today. It dealt with activities regarding tracing missing persons, restoring contact
between prisoners and their families, visiting prison camps, delivering aid and repatriating ex-
detainees. No other conflict has transformed the organization so deeply.

49
Priya Pillai, A case for Abhinandan Varthaman: The Geneva Conventions on Treatments and Release of
Prisoners of War, Bar and Bench, retrieved on 27 th February , 2019.

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REFERENCES

Journals

1. Albert J. Esgain & Waldemar A. Solf, The Geneva Convention Relative to the
Treatment of Prisoners of War 1949: Its Principles, Innovations, and Deficiencies, 41
N.C. L. Rev. 537 (1963).
2. Franck, Thomas M. “Criminals, Combatants, or What? An Examination of The Role of
Law in Responding to the Threat of Terror.” The American Journal of International
Law, vol. 98, no. 4, 2004, pp. 686–688 (2004)
3. G. I. A. D. Draper, The Status of Combatants and the Question of Guerilla Warfare, 45
Brit. Y.B. Int'l L. 173, 218 (1971)
4. M. Odello, Emily Crawford, The Treatment of Combatants and Insurgents under the
Law of Armed Conflict, 16 Journal of Conflict and Security Law 217-222 (2011).
5. Paul W. Kahn, Lessons for International Law from the Gulf War, 45 Stanford Law
Review 425 (1993).
6. S. P. Mackenzie, The Treatment of Prisoners of War in World War II, The Second
World War323–356 (2017).

7. Megan Comfort, Tasseli Mckay, Justin Landwehr, Erin Kennedy, Anupa Bir, Christine
Lindquist, The costs of incarceration for families of prisoners, International Committee
of the Red Cross (2018).
8. Tilman Rodenhäuser, Strengthening IHL protecting persons deprived of their liberty:
Main aspects of the consultations and discussions since 2011 International Committee
of the Red Cross (2018).
9. Oona A.Hathaway , Do Human Rights Treaties Make a Difference?, Yale Law
Journal 111 (2002): 1935-2042
10. British Manual of Military Law, Part III, The Law of Land Warfare, London, 1958,
para. 132, note 3, and the US Department of Army, Law of Land Warfare, Field
Manual 27–10, 1956, para. 71(c), (d).
11. A. Cassese, International Law, 2nd edn, Oxford, 2005, pp. 409–10,
12. Eritrea–Ethiopia Claims Commission in its Partial Award, Prisoners of War,
Ethiopia’s Claim 4, 1 July 2003, paras. 53 and 64
13. The Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ
Reports, 1996, p. 226, 256.

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14. G. I. A. D. Draper, ‘The Status of Combatants and the Question of Guerilla Warfare’,
45 BYIL, 1971, pp. 173, 186.
15. Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict,
2nd edn, Cambridge, 2010.
16. T. Meron, ‘ Revival of Customary Humanitarian Law’, 99 AJIL, 2005, p. 817.

Books

1. FISCHER Horst, “Protection of Prisoners of War”, in FLECK Dieter (ed.), Handbook

of Humanitarian Law, Oxford, OUP, 1995, pp. 321-367
2. James A. Stegenga, Humanity in Warfare. By Geoffrey Best. New York: Columbia
University Press, 1980. Pp. xi, 400. Index. $25, 76 American Journal of International
Law 208–209 (1982).
3. Malcolm N. Shaw, International Law (6 ed. 2008).
4. S.K.Verma, Public International Law (2 ed. 2017)

5. Michael Haas, International Human Rights: A Comprehensive Introduction (2014).

Web Pages

1. Confronting the Hell of the Trenches - The ICRC and the First World War, International
Committee of the Red Cross (2018), https://www.icrc.org/en/publication/4362-face-
lenfer-des-tranchees-le-comite-international-de-la-croix-rouge-et-la-premiere (last
visited Mar 27, 2019).
2. Prisoners of war and detainees protected under international humanitarian law - ICRC,
Icrc.org (2010), https://www.icrc.org/en/doc/war-and-law/protected-
persons/prisoners-war/overview-detainees-protected-persons.htm (last visited Mar 27,
2019).
3. Detention: Addressing the human cost, International Committee of the Red Cross
(2018), https://www.icrc.org/en/international-review/detention-addressing-human-cost
(last visited Mar 27, 2019).
4. Priya Pillai, A case for Abhinandan Varthaman: The Geneva Conventions on
Treatments and Release of Prisoners of War, Bar and Bench, retrieved on 27th February,
2019.

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5. 2003 Gulf War: see the report of the condemnation by the International Committee of
the Red Cross, http://news.bbc.co.uk/ 1/hi/world/middle east/2881187.stm.
6. Treaties, States parties, and Commentaries - Geneva Convention (III) on Prisoners of
War, 1949, Ihl-databases.icrc.org (2019), https://ihl-
databases.icrc.org/applic/ihl/ihl.nsf/INTRO/375?OpenDocument (last visited Mar 27,
2019).

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