Part 1

Protection of POWs and civilians

Protection of Prisoners Of War (POWs) and civilians

University of OsloUniversity of Oslo6 October 20086 October 2008

Mads Harlem, Head of International Humanitarian Law Mads Harlem, Head of International Humanitarian Law UnitUnit

NORWEGIAN RED CROSSNORWEGIAN RED CROSS

Outline of Programme

• Distinction between civilians and combatants

• Persons entitled to protection under IHL in general

– Focus on persons deprived of their liberty

– Focus on Civilians in Occuppied Territory

• Case Studies

Distinction Between Civilians and Combatants

CIVILIANS COMBATANTSDo not participate in the hostilities

Behaviour Participate in the hostilities

Do not have the right to take up arms

Rights Have right to kill (within the limits of IHL)

Can be pursued and punished for taking up arms

Responsibilities

Cannot be pursued for using force in line with IHL

Must not be attacked Protection against Attack

Can be attacked; are military objectives

Must be respected and humanity

Treatment by the Enemy

In the case of capture, benefit from POW status

Persons Entitled to Protection under IHL

• IACs: different categories of "protected persons"

– wounded, sick and shipwrecked

– medical and religious personnel

– prisoners of war

– civilians in the power of the enemy

• NIACs: "persons taking no active part in the hostilities" (Common Art. 3); "all persons who do not take a direct part or who have ceased to take part in hostilities" (Art 4.1, AP II)

Persons Deprived of Their Liberty

• IAC– captured combatants = prisoners of war

• NIAC– upon capture, people participating in the hostilities are

not entitled to POW status

Persons Deprived of Their Liberty - IACPrisoners of War: Scope

• two conditions:

1) fall within the categories of persons specifically listed in :

• Art. 4, GC III and

• Art.44 (3) AP I

2) fall in the power of the enemy

Categories of Persons = Prisoners of War

• Members of the armed forces

• Members of other militias and volunteer corps belonging to a party to the conflict provided they: (1) are under responsible command; (2) wear a fixed distinctive sign; (3) carry arms openly; and (4) respect IHL

• Authorised persons who accompany the armed forces

– Civilian members of military aircraft crews– War correspondents– Supply contractors– Members of labor units or of services responsible for the

welfare of the armed forces

• Members of merchant marine crews and civil aircraft crews of the parties to the conflict

• Levée en masse

Loss of Combatant/Prisoner of War Status

• in general, violations of IHL do not deprive combatant/POW of that status

• Combatants must carry arms openly during each military engagement and while visible to the adversary when engaged in a military deployment prior to the launching of an attack

– combatant who falls into the power of an adverse party while failing to do so forfeits right to POW status, but shall receive equivalent protections

– combatant who falls into the power of an adverse party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit right to be combatant/POW by virtue of prior activities

Determination of Prisoner of War Status

• Presumption of Prisoner of War Status

– "Should any doubt arise as to the status of persons who have committed belligerent acts and have fallen into the hands of the enemy, such persons will enjoy the protection of the third Geneva Convention until such time as their status has been determined by a competent tribunal."

Art. 5, GC III; see also Art. 45, AP I

Exceptions:

• Spies – act under false pretences or deliberately in a clandestine manner; caught in the act

– do not have the right to POW status (Art. 46, AP I)

• Mercenaries – specially recruited to fight in an armed conflict, motivated by the desire for private gain (material compensation superior to that given to combatants of the regular armed forces)

– do not have the right to be a combatant or a POW (Art 47, AP I)

Treatment of Prisoners of War

• protection and humane treatment (Arts. 12 – 16, GC III)

• questioning (Art. 17, GC III)

• evacuation (Arts. 19 and 20, GC III)

• conditions of detention (Arts. 21 – 48, GC III)

• labor (Arts. 49 – 57, GC III)

• relations with the outside world (Arts. 69 – 77, GC III)

• relations with the authorities (Arts. 78 – 109, GC III)

• right for ICRC to visit (Art. 126, GC III)

End of Captivity

• repatriation for medical reasons during the conflict (Arts. 109 – 117, GC III)

• release and repatriation without delay after the end of active hostilities (Arts. 118 – 119, GC III)

Persons deprived of Their Liberty: NIACs

• Scope: all persons detained in relation with NIAC

• no POW status

• Humane treatment – minimum standards

• can be prosecuted for the simple fact of having taken up arms…even if IHL respected

• At the end of hostilities, authorities “shall endeavor to grant broadest possible amnesty to persons who have participated in armed conflict or those deprived of their liberty for reasons related to armed conflict (Art. 6(5), AP II)

Part 2

Occupation

Occupation

• The de facto situation determines whether there is occupation:

• Common article 2: … the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, ….The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, …

Definition of Occupation:

• Art. 42, Hague reg.: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

• Common Art.2: “..the Conventions apply to all cases of partial or total occupation of the territory of a High Contracting party, even if the occupation meets with no armed resistance.”

Three criteria:

• Exercise of authority or effective control– The occupied government is incapable of

exercising its authority– The occupying power is capable of exercising

such authority

• Over the whole or parts of the territory of another state

• Irrelevant if the occupation was met with armed opposition

Applicable international law

– Articles 42 to 56 of the Hague reg.

– Articles 27 to 34 and 47 to 78 of GC IV

– Customary law

– Specific rules laid down by international bodies such as the Security Council

The Law in Occupied Territory:

• Art. 43, Hague Reg.: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

Rights of the Occupying Power

• can change the laws and regulations in force to the extent necessary (Art. 64, GC IV):

– to permit it to fulfill its obligations under GC IV

– to enable it to administer the territory

– for its own security

• can hand over those accused of violating such laws and regulations to its own military courts in the occupied territory (Art. 66, GC IV)

• can intern the civilian population "for imperative reasons of security" (Art. 78, GC IV)

• can force the civilian population to work…but only in limited circumstances (Art. 51, GC IV)

Duties of the Occupying Power

• cannot carry out deportations, transfers, or forced evacuations (Art. 49, GC IV)

• cannot transfer part of its own civilian population into the territory (Art. 49, GC IV)

• cannot force civilians to serve in its armed forces (Art. 51, GC IV)

• must ensure the food and medical supplies of the population (Art. 55, GC IV)

• must facilitate the delivery of humanitarian assistance (Art. 59, GC IV)

• must maintain medical services (Art. 56, GC IV)

Internment of protected persons

• Occupying powers can intern protected persons– GC IV, Article 79:

– Due to security reasons (Art.41, 42, 68)

– Must review at leat twice a year (court or administrative board) (Art. 43)

• Saramati

• Al Jeddah

Conditions of internment• camps should not be set up in areas « particularly

exposed to the dangers of war » (Art. 83, GC IV)

• internees accomodated and administered separately from POWs and other detainees (Art. 84, GC IV)

• conditions of internment (Arts. 83 - 98, GC IV)

• administration and discipline (Arts. 99 - 104, GC IV)

• relations with the outside world (Arts. 105 - 116, GC IV)

• penal and disciplinary sanctions (Art. 117 - 126, GC IV)

• transfers effected humanely (Art. 127, GC IV)

• released as soon as reasons for internment no longer exist (Art. 132, GC IV), and in any event, as soon as possible after the close of hostilities (Art. 133, GC IV)

Iraq and Kosovo

• Iraq: Armed attack by the US and UK followed by occupation by the US and the UK – SCR 1483

• Kosovo: Armed attack by the NATO followed by something which looks a lot like occupation by the UN– SCR 1244

SCR 1483 (2003)

• Establishes US and UK as occupying powers (“the Authority”)

• Establishes that other states working with the Authority do not therefore become occupying powers

• Calls upon the Authority to promote the welfare of the Iraqi people through effective administration of the territory, including in particular working towards restoration of security and stability and creation of democratic conditions

SCR 1244 (1999)

• Establishes the international civil presence (UNMIK) and gives it mandate to perform basic civilian administrative functions where and as long as required

• Authorises Member States to establish security presence (KFOR) and gives it mandate to use all necessary means to fulfil the mandate