POWs & Other Detainees

Detention in armed conflict is actually a common and often lawful occurence. However, isolated from loved ones and in the hands of the enemy, these detainees are extremely vulnerable to abuse. IHL seeks to mitigate this.

IHL distinguishes between:

• Combatants who are deprived of their liberties in International Armed Conflicts (IACs) and benefit from Prisoner of War (POW) status under the Geneva Conventions 3 and...

• Civilians detained in IACs (protected under the Geneva Conventions 4 and...

• Persons detained in NIACs protected by Common Article 3 and Additional Protocol II

(A exceptional case to this principle would be the circumstances surrounding the Guantanamo Bay Detention Camp.)

Prisoners of War (POWs)

Because they carry out belligerent acts, combatants are considered to pose threat to the security of the adverse party. Thus, the enemy can lawfully deprive them of their liberty until the end of active hostilities (known as POWs).

The 3rd Geneva Convention, Article 4 references protection of combatants who have fallen into the power of the enemy. Combatants are members of the armed forces of a party to an IAC with an exception of medical and religious personnel.

Members of irregular armed forces are also entitled to POW status, provided they meet the necessary requirements.

The internment of combatants is a non-criminal preventative measure taken by the adverse party to protect itself against security threats.

POWs can be interned without any specific judicial or administrative procedure. They are nevertheless protected by IHL from the time they fall into the enemy power to the time of repatriation/ release.

Protection of POWs

They must at all times be humanely treated.

Causing death/ injury to POWs is explicitly prohibited.

The detaining power must also protect POWs from acts of violence/ intimidation/ insult/ public curiosity (measures of reprisal).

• The detaining power must tend to POWs' basic needs, free of charge e.g. provision of food, water, shelter, medical care etc.

• POWs must be allowed to freely practice their religion and engage in education/ recreational activities

• They must be allowed to retain contact with the outside world e.g. family, the home state and the ICRC

IHL also affords fair trial rights to detainees for POWs facing criminal charges.

Civilians in IACs

Civilians by definition do not pose threat to the security of the beligerent, however, in some cases (e.g. occupied territories) civilians may participate in criminal activities against the occupying power, and could thus be lawfully detained. They must however be allowed to have a review of their detainment by an appropraite and impartial court/ administrative board.

Under very strict circumstances, civilians may be interned for security reasons, but only if an approprate and impartial administrative court determines they pose significant threat to the security of the belligerent party, and there must be no other deemed alternative. This could be the taking up of arms for instance. IHL contends that they must be released as soon as possible, and must receive adequate protection, treated humanely, receive basic needs, have contact with loved ones and the outside world etc.

Detention in NIACs

There is no specific legal basis for justifying detention.

Implicit reference to the possibility of detention provides a minimum level of protection for those liberty-deprived.

• Common Article 3 of the Geneva Conventions and Article 4 of the Additional Protocol II state that all persons taking no active part in hostilities must be treated humanely.

• Article 5 of the Additional Protocol II states that detainees' basic needs must be provided for and they must have access to outside world contact.

• Common Article 3 and Article 6 of the Additional Protocol II provide fro judicial guarantees.