Combatants and Prisoners of War
Combatants and Prisoners of War
A prisoner of war is a combatant in an international armed conflict who falls into the hands of the enemy, or more precisely those of the enemy Power, but not of the individuals or military units who have captured him.1 Thus, all lawful combatants can get prisoners of war status. That is to say, a person who complies with the conditions of the status of combatant can get prisoner of war status. Since prisoners of war are one of the war victims, they need reasonable care and protection. This does not concern with whether a war is declared or not and the acceptance of the parties that there is a state of war. During war, there may be composed of, generally, combatants, non-combatants, militias, volunteer corps, unlawful combatants and spies. But not all of them can get prisoner of war status. At present, the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 (Third Geneva Convention or GC III) is the most usable one to determine who can get prisoners of war status.
Pietro Verri, Dictionary of the International law of Armed Conflict, ICRC, 1992, p. 87.
1.1 Historical Background In ancient times, captives were the chattels of their victors who could kill them or reduce them to bondage,2 since the victorious forces gradually discovered that captives constituted a useful and very cheap supply for manpower. This creates the custom of reducing the captured enemy warriors to slavery, but it did not take long time because of religion. In the early medieval period, the practice of releasing a prisoner of war on payment of a ransom was introduced. Obviously, the prisoners of war between Muslims and Christians were commonly ransomed or exchanged.3Thus, in classical and to some extent feudal times a member of the enemy forces captured in battle was considered to be in the power and at the disposal of his individual captor, who could kill or enslave him, free him or hold him for ransom.4 However, at that time, the concept of Prisoner of War was unknown, though SunTzu in his The Art of War 5stated that Treat the captives well, and care for them.6 In 19th century, the laws and customs of war were gradually developed. The Lieber Code7 which came into force in April 1863 and is important in that it marked the first attempt to codify the existing laws and customs of war.8 This Code includes Articles concerning with prisoners of war. But it did not have the status of treaty, since it only concerns with Union Soldiers fighting in the American Civil War. Thus, the Brussels Conference of 1874 worked on the project as did the institute of International law which published in 1880 the Oxford Manual whose principal author was none other Gustave Moynier, one of the founders of the Red Cross. 9 These indicated the necessity of rules concerning with prisoners of war to be developed. However, the growing tendency during
2
Jean S. Pictet, Commentay on the Third Geneva Convention Relative to the Treatment of Prisoners of War, Geneva, 1960, p. 45 3 www.Islam and slavery-Wikipedia.org. (21.10. 2007) 4 L.C. Green, The Contemporary Law of Armed Conflict, Manchester University press, 1993, p. 188. 5 A Treatise on Chinee Military Science Compiled about 500 B.C, Eng, tr, Samuel B.Griffit, 1963. 6 Chapter III, Rule 19 of the Art of War. 7 It had been prepared by Francis Lieber, an international lawyer of German origin who had emigrated to America. 8 International Humanitarian Law, Answers to your Question, ICRC, 2002, p. 9. 9 Jean Pictet, Development and Principles of International Humanitarian Law, Henry Dunant Institute, 1985,p. 36.
3 the second half of the nineteenth century toward the humanizing of war led to the formulation of elaborate provisions for the improvement of the condition of prisoners.10 The first international convention on prisoners of war was signed at the Hague Peace Conference of 1899.11 It was more completed and more explicited by the Hague Convention of 1907 and then the Hague Regulations Concerning the Laws and Customs of War on Land were adopted on 18, October, 1907. The Second Chapter of these regulations deals with prisoners of war and is the first international ruling in this field. However, the out brake of First World War (1914-1918) pointed out insufficient of the Hague Regulations. During this war, the Hague Regulations governed the treatment of seven million prisoners of war.12 But these regulations still required to solve their difficulty. Moreover, because of necessity, ICRC created the Central Agency for Prisoners of War which relieved the uncertainty and anxiety of an enormous number of families. It was, however, created with no legal basis because there was no special provision to establish such kind of Agency at that time. The inadequacy of the provisions of the Hague Convention led to the Geneva Convention Relative to the Treatment of Prisoners of War, 1929. It was signed by 47 governments on 27 July 1929.13 But, Japan and the USSR did not adhere to that Convention. Thus, during World War II, Japan at first committed such atrocities as the death march of Bataan, but began to abide by the rules after a sufficient number of Japanese prisoners had fallen into Allied hands to make reprisals possible.14Besides, Soviet Prisoners in Germany and Prisoners of war in the Soviet Union were refused the benefits of the Geneva Convention, 1929, since Soviet Union was not a party to that Convention. On both sides of the front, captured soldiers have no legal protection and mortality was frightful.15 The changed methods of warfare in World War II (1939-1945), the maltreatment of prisoners of war that constituted an important part of war crimes indictments and the
10
Charles G. Fenwick, International Law, Allied Pacific Private Limited, third edition ,1962, p. 574. 11 Prisoner of War, Columbia Encyclopedia, Columbia University Press, sixth edition, 2007, p. 2. 12 Jean Pictet, Development and Principles of International Humanitarian Law, Henry Dunant. Institute, 1985, p. 36. 13 www.prisoner of war-Encyclopedia.com (official website of Columbia University) (21.10.2007) 14 Ibid 15 Jean Pictet, Development and Principles of International Humanitarian Law, Henry Dunant Institute, 1985,p. 37
4 retention of a great number of German prisoners of war by the USSR for several years after the war showed that the 1929 Convention required revision on many points.16 This led to the Geneva Convention relative to the treatment of Prisoners of Water of 12, August 1994. In present, 8 June 2007, it was signed by 194 governments. One of the main objects of the revision made in 1949 was to increase the categories of prisoner of war in the event of capture.17 Prisoner of war status is important fact for a captured person in the hands of a hostile power because of a matter of his life or death for having committed a belligerent act is depend on it. In order to entitle the prisoner of war status a captured person must have a combatant status.
1.2 Combatants and Non Combatants A civilian may transform himself into a combatant. In fact, every combatant is a former civilian. That is to say, nobody is branded as a combatant since he was born. Thus, in certain situation, a person to be determined whether a combatant or not is a difficult problem. In ancient time as evidenced by the laws of Manu, the Old Testament of the writings of Kautilya or SanTzu there was no attempt to identify those who were entitled to be treated as combatants.18 However, the requirement that combatants distinguish themselves from the civilian population is already recognized as a long standing rule of customary international law in the Brussels Declaration19 (1874), the Oxford Manual20 (1880) and the Hague Regulations21 (1907). At present, it was explicitly codified in the Third Geneva Convention Relative to the Treatment of Prisoners of War22 and Additional Protocol I Relating to the Protection of Victims of International Armed Conflicts.23 The question relating to belligerent status was discussed as the most important factor during 1899 and 1907 Peace Conferences. It is of the utmost significance. Once
16 17
www.prisoner of war-Encyclopedia.com (official website of Columbia University). (21.10.2007) Jean Pictet, Development and Principles of International Humnitarian Law, Henry Dunant Institute, 1985, p. 38. 18 L.C.Green, The Contemporary Law of Armed Conflict, Manchester University , second edition, 2000, p. 102 19 Article 9 of the Brussels Declaration (1874) 20 Article 2 of the Oxford Manual (1880) 21 Article 1 of the Hague Regulation (1907). 22 Article 4 (A) of Geneva Convention III, 1949. 23 Article 44 (3) of Additional Protocol I (1977).
5 one is accorded the status of a belligerent, one is bound by obligations of the law of war, and entitled to the rights which they confer.24 In international law, members of the armed forces of a party to the conflict, except medical and religious personnel25 are combatants, that is, they are entitled to take a direct part in hostilities.26 However, combatants have certain conditions to be fulfilled in order to distinguish themselves from the civilian population. This is intending to protect civilians. According to Article 4 (A)(2) of Geneva Convention Relative to the Treatment of Prisoners of War, 1949, combatants should engage in war under the command of a person who is responsible for them and should have a fixed distinctive sign recognizable at a distance, and then they must carry arms openly and conduct their operation in accordance with the laws and customs of war. These four conditions are required to determine whether a person participating in hostilities is a combatant or not. Upon capture, they shall neither be tried for their participation in the hostilities nor for acts that do not violate international humanitarian law.27 However, in certain circumstances, they and members of resistance forces are permitted not to wear uniforms, do not have to carry their arms openly at all times, do not have to wear marks of identification visible at distance, and so on. 28 Thus, it should be borne in mind that on occasion members of the regular forces left behind in occupied territory or action as advisers to resistance movements may also operate out of uniform.29 Besides, since self-determination and national liberation is now regarded as an international armed conflict,30 members of such movement become entitled to all the privileges of a legally recognized combatant. Even inhabitants of a non-occupied territory , who on the approach of the enemy spontaneously and in mass take up arms to resist the invading forces, without having had time to form themselves into organized armed units, provided they carry arms openly and respect the law of war,31 are also considered as
24
Jean S. Pictet, Commentay on the Third Geneva Convention Relative to the Treatment of Prisoners of War, Geneva, 1960, p. 46. 25 Article 4 (c ) of Geneva Convention III, 1949. 26 Article 43(2) of Additional Protocol I, 1977. 27 Jean-Marie Henckaert and Louise Doswald-Beck, Customary International Humanitarian Law,Cambridge University, 2005, p. 384. 28 L.C. Green, The Contemporary law of Armed Conflict, Manchester University, 1993, p. 61 29 Ibid. 30 Article 1(4) of Protocol I, 1977. 31 Article 4 (A) (6) of Geneva Convention Relative to the Treatment of Prisoners of War, 1949.
6 combatants. These combatants may be known as levee en masse32 Thus, subject to Article 44 (7) of Additional Protocol I, 1977, members of an armed force that are not in uniform do not affect their status and rights as combatants and to be treated as such. Article 44 (7) of Additional Protocol I, 1977 provides that, This Article (Article 44) is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict. In the Swarka case in 1974, and Israeli Military Court found that members of the Egyptian armed forces who had infiltrated Israeli territory and launched an attack in civilian attire were not entitled to prisoner of war status and could be prosecuted as saboteurs. The Court considered that it would have been illogical to regard the duty to distinguish oneself as applicable to irregular armed forces but not to regular armed forces, as the defendants had claimed.33On the other hand, individual member of the armed forces acting separately from their units remain protected, even when employing methods of surprise or violent combat, provided they wear uniform when so doing.34 Besides, any person who collects information while in uniform retains his status as a combatant, is liable to be fired upon like any other member of the armed forces35, and if captured his status remains unchanged. Thus, if members of regular armed forces do not wear uniform, they risk being charged as spies or saboteurs.36 Nevertheless, this rule37 was not always respected by the resistance organization (until now) but there should be no room for doubt on this matter.38 Therefore, in order to promote the protection of the civilian population from the effects of hostilities, when an armed combatant cannot distinguish himself because of the nature of hostilities, he keeps his status as a combatant if he carries his arms openly, (a) during every military engagement
32 33
Pietro Verri, Dictionary of the International law of Armed Conflict, ICRC, 1992, p. 66 Jean-Marie Henckaerts and Louise Doswald-Beck Customary International Humanitarian Law, Cambridge University, 2005, pp. 385-386. 34 L.C .Green, The Contemporary Law of Armed Conflict, Manchester University, second edition, 2000, p. 113. 35 L.C.Green, The Contemporary Law of Armed Conflict, Manchester University ,1993, p. 142. 36 Jean-Marie Henckaert and Louise Doswald Beck, Customary International Humanitarian Law, Vol-I.Cambridge, 2005, p. 385. 37 Article 4(2)(b)of Geneva Convention III, 1977. 38 Jean S.Pictet, Commentary on the Third Geneva Convention Relative to the Treatment of Prisoners of War, Geneva, 1960, p.59.
7 (b) as long as he is visible to the enemy while he is engaged in a military deployment proceeding the launching of an attack in which he is to participate.39 If an armed combatant engaged in hostilities in accordance with these requirements, he shall not be considered as perfidious.40 If he fails to do so, his rights to be a combatant shall be forfeited, since this rule is a special minimum rule 41 to regard a person who engaged in hostilities as a combatant. However, members of armed forces must respect the laws and customs of war and shall engage in hostilities under the authorization of commanders or other superiors, either civilian or military, who will take responsibility for their subordinates. Thus, members of the armed force of a country engaged in a war of aggression retain their status as combatants in every respect, even though senior members of the supreme command or of the government may subsequently be tried for aggression.42 He does, however, remain liable for any war crime he may have committed. These indicate that combatants are, though they are former civilians, obliged to distinguish themselves from civilian population while they are engaged in an attack or in a military operation preparatory to an attack, since it is particularly important for enemy forces, both for military purposes and to protect the civilian population and avoid civilian casualties. However, their status remain unchanged if they fulfill the following conditions in any situation, (1) carrying arms openly,43 and (2) respecting laws and customs of war. Notwithstanding, subject to Article 44 (7) of Additional Protocol I, 1977, these conditions must be fulfilled in good faith. Not all persons who accompany the armed forces are considered as combatants. A person who does not directly take part in hostilities is known as non-combatant, though he accompanies the armed forces. According to Pietro Verri44, non-combatants mean
39 40
Article 43 (3)of Additional Protocol I, 1977. Ibid. 41 Frits Kalshoven, Constraints on The Waging of War, Geneva, 1991, p. 77. 42 L.C.Green, The Contemporary Law of Armed Conflict, Manchester University, second edition, 2000, p. 118. 43 Artcle 44 (3) of Additional Procol I, 1977. 44 General Pietro Verri who is an author of Dizionario Di Diritto Internazionale Dei Conflitti
8 members of the armed forces other than medical and religious personnel who took no direct part in hostilities. Since medical and religious personnel, whether military or civilian, shall be respected and protected as civilians, they should not be inserted as noncombatants, although if unlawfully attacked they would be entitled to defend themselves and those within their care by the use of small arms.45 Thus, non-combatants are those who merely contribute to the general war effort is not tantamount to active participation in hostilities.46 It would also be improper for a commander to allow those under his control to take a direct part in combat. However, individuals who are employed in industries or other activities connected with the war effort, for while so engaged they may lose some of their immunities as civilians and become liable to attack.47 This does not mean that they therefore become combatants.48 For instance, a driver (or pilot) delivering ammunition to combatants,49 and munitions workers50 are commonly acknowledged to be actively taking part in hostilities. They should, however be considered as non-combatants as long as they do not directly take part in hostilities. This does not concern with Article 44 (5) of Additional Protocol I. Besides Porters, couriers,51 commissary, sulters and contractors52, civil servants53 are also non-combatants. Since they just follow an army without directly taking part in hostilities. However, they support in it. Nowadays, all members of the armed forces apart from medical and religious personnel are regarded as combatants.54 It is irrelevant whether they took part in hostilities directly or other wise.55 Most scholars indicate civilian population as nonArmati which was published in 1984. L.C. Green, The Contemporary Law of Armed Conflict, Manchester University, second edition, 2000, p. 105 46 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge, 2004, p. 28. 47 L.C.Greem , The Contemporary Law of Armed Conflict, Manchester University, Second ediion, 2000, p. 107 48 Ibid 49 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge, 2004, p. 27 50 L.C.Greem , The Contemporary law of Armed Conflict, Manchester University, Second ediion, 2000,p. 107 51 L.Oppenheim, International law, Vol II, Longmans, seventh edition, 1955, p. 255 52 Article 13 of Hague Regulations Respecting the Laws and Customs of war on Land, 1907 53 Article 4(4)and (5)of Geneva Convention Relative to the Treatment of Prisoners of War, 1949. 54 Pietro Verri, Dictionary of the International Law of Armed Conflict, ICRC, 1992, p. 80 55 Ibid
45
9 combatants. Thus, civilians are not allowed to participate directly or otherwise in hostilities.56If they do so, they will lose their status as a civilian and may become a combatant or unlawful combatant. Nevertheless, the intention behind the distinction is to protect the non-combatant from being unjustifiably harmed and to ensure that force is used only against those whom it is justified, namely the combatants. 1.3 Militias and Volunteer Corps Anyone who use force against the enemy but is not a combatant cannot claim the privileges of combatant status.57He is personally liable for his actions and subject to the strictures (particularly harsh in time of war) of national law.58 Thus , the most difficult point was that of the partisans who continued to fight in occupied territory.59 During World War II, national groups continued to take on effective part in hostilities although not recognized as belligerents by their enemies, and members of such groups, fighting in more or less disciplined formation in occupied territory or outside their own country, were denied the status of combatants, regarded as francs-tireurs60 and subject to repressive measures.61 However, the problem was finally solved by the assimilation of resistance movements to militias and corps of volunteer, not forming part of the armed forces of a Party to the conflict.62 Militias and corps of volunteers should belong to a Party to the conflict, since such militias and volunteer corps are not entitled to style themselves a Party to the conflict.
63
Thus, in Kassen case (1971)64, the question was put to Israeli Military
Tribunal whether informed members of the organization of PFLP (Popular Front for Liberation of Palestine) are entitled to prisoner of war treatment. The court found that
56 57
Article 51 (3) of Additional Protocol I, 1977 and Article 13 (3) of Additional Protocol II, 1977. Hans Peter Gasser, International Humanitarian Law, An Introduction, Hanry Dunant Institute 1993, p. 24. 58 Ibid 59 Jean Picet, Development and Principles of International Humanitarian Law, Hanry Dunant Institute, 1985, p. 38 60 This expression, now obsolete, has been partly replaced by member of a resistance movement. 61 Jean S.Pictet, Commentary on the Third Geneva Convention Relative to the Treatment of Prisoners of War, Geneva, 1994, p. 52. 62 Ibid, pp. 49-50 63 Jean S.Pictet, Commentary on the Third Geneva Convention Relative to the Treatment of Prisoners of War, Geneva, 1994, pp. 56-57 64 Military Prosecutor, Omar Mahmud Kassen and other (1971) 42, I.L.R, p. 470.
10 PFLP did not belong to any party to the conflict and so its members were not entitled to prisoner of war status. Unlike levee en masse,65 militias and volunteer corps are protected by Geneva Convention III when operating in or outside their own territory, even if this territory is occupied.66 However, in order to promote the protection of the civilian population from the effects of hostilities, they should respect the special minimum rule 67on carrying arms openly. And if they do so their status remains unchanged.68 With respect to Article 44 (3) of Additional Protocol I, 1977, many states have indicated that the exception is limited to situations where armed resistance movements are organized, namely in occupied territories, or in wars of national liberation.69 Moreover some states indicated that the term visible includes being visible with the naked eye and the term military deployment meant the last step when the combatants were taking their firing positions just before the commencement of hostilities, a guerrilla should carry his arms openly when within range of the natural vision of his adversary.70 Militias and volunteer corps including guerilla forces which are organized mainly when there is a substantial imbalance between opposing forces, thus, become lawful combatants as long as they respect laws and customs of war and carry their arms openly according to above mentioned. And they must be a party to a conflict and must be organized. If they fulfilled these conditions, they have to be protected as a prisoner of war and shall not be punished for engaged in hostilities with any reason. 1.4 Unlawful Combatants Entitlement to the status of a prisoner of war - upon being captured by the enemy is vouchsafed to every combatant; subject to the condition sine qua non71 that he is a lawful combatant.72 Basically, if civilian residents of occupied territory committing
65
L.C.Green, The Contemporary Law of Armed Conflict,Manchester University, second edition, 2000, p. 107 66 Article 4(A)(2) of Geneva Convetion III, 1949. 67 First Kalshoven, Constrainsts on The Waging of War, Geneva, 1991, p. 77 68 Article 44 (3) of Addition Protocol I, 1977. 69 Jean-Marie Henckaerts and Louise Doswal-Beck, Customary International Humanitarian Law, Combridge University, 2005, p.388. 70 Ibid 71 Condition without considered as not. 72 Yoram Distein, The Conduct of Hostilities under the Law of International Armed Conflict,Cambridge, 2004, p. 29.
11 espionage or sabotage shall be treated as unlawful combatants and may be punished for such acts whenever they are captured.73 This is because no person who does not have combatant status may lawfully commit sabotage. That is to say, only combatants have the right to participate directly in hostilities.74 Thus, a person who engages in military raids by night, while purporting to be an innocent civilian by day is neither a civilian nor a lawful combatant.
75
Since, by virtue of Additional Protocol I, 1977, violations of the rules of international law applicable in armed conflict shall not deprive a combatant of his right to be a combatant 77 and if he carries his arms openly,78he shall retain his status as a combatant even if he cannot distinguish himself from the civilian population. Besides, subject to Article 44(7) of Additional Protocol I, 1977, a civilian can convert himself into a combatant since the purpose of war is to defeat the adverse party. Nobody is born a combatant. Stratagems79 and ruses80 are also permitted in armed conflicts though perfidy is forbidden.81 Thus, the inhabitants of a town under attack take up arms in its defense are entitled to be treated as combatants and also known as levee en masse. Article 4(A)(6) of Geneva Convention III., 1949, also stipulates that, inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, especially, to organize themselves under responsible commander, and to procure fixed distinctive emblems recognizable at a distance, shall nevertheless enjoy the privileges due to armed forces provided that they carry arms openly and respect the laws and customs of war. Even in occupied territory, they are entitled to be treated as combatant, if they are so organized as to constitute a resistance movement82or guerrilla warfare. Thus,
73 74
L.C. Green, The Contemporary Law of Armed Conflict, Manchester University, 1993, p. 142 Article 43(2) of Additional Protocol I, 1977. 75 Yoram Distein,The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge, 2004,p. 29. 76 Ibid 77 Article 44(2) of Additional Protocol I, 1977. 78 Article 44 (3) of Additional Protocol I, 1977 79 L.C. Green, The Contemporary Law of Armed Conflict, Manchester University, 1993, p. 138 80 Article 37(2) of Additional Protocol I, 1977. 81 Article 37 of Additional Protocol I, 1977. 82 L.C.Green, The Contemporary Law of Armed Conflict, Manchester University, second edition, 2000, p. 107
12 inhabitants or civilian may not be considered as unlawful combatants as long as they carry their arms openly and they conducted their operations in accordance with the Laws and Customs of War. Notwithstanding, this does not mean to perceive that a person can be (and is allowed to) be both a combatant and a civilian at the same time. This act shall be considered as unlawful act and if the combatant who does that act shall also be considered as an unlawful combatant. According to Article 47 of Additional Protocol I, 1977, mercenaries are denied as lawful combatants. This regardless of whether they are in the uniform of the state whose forces they have joined unless properly embodied as members of that force.83 In other word, if the force to which that mercenary offers his service is a properly organized force, he will almost certainly be embodied in to that force, thus taking him out of the mercenary classification.84Thus, it is probable that one who is alleged to be a mercenary has the right to question that status and assert that he is in fact entitled to prisoner of war status in the same fashion as any other captive.85 Besides, If he is not a combatant, 86 he is presumably a civilian and would, therefore, remain protected under the IVth (Geneva) Convention87 to the extent that he is not considered an unlawful combatant and tried as such.88 The Status of the International Criminal Court established by treaty in 199889 makes no reference to mercenarism as a crime.90 The phrase unlawful combatant does not appear in the Third Geneva Convention. However, Detention of Unlawful Combatants, law defines and unlawful combatant as anyone taking part - directly or indirectly - in hostilities who is not entitled to a prisoner or war status under Geneva Convention III, 1949.91In United States, it also defines that, the term unlawful enemy combatant means a person who --- is not a lawful combatant (including a person who is part of the Taliban, al-Qaida, or associated forces)
83 84
L.C.Green, The Contemporary Law of Armed Conflict, Manchester Universtiy, 1993, p. 191. Ibid, P.113 85 Ibid, P.191. 86 Article 47 (1) of Additional Protocol I, 1977. 87 Article 4 of Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Geneva, 1949. 88 L.C. Green, The Contemporary Law of Armed Conflict, Manchester University, second edition, 2000, p. 115. 89 Rome Statute of International Criminal Court came into force on 1 July, 2002. 90 L.C. Green, The Contemporary Law of Armed Conflict, Manchester University, second edition, 2000, p. 117 91 Section 2 of Detention of Unlawful Combatants Law of Israel passed by Knesset in 2002.
13 or a person who, before, on or after the date of the enactment of the Military Commission Act of 2006, has bee determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority or the President or the Secretary of Defense.92 These definitions, however, indicated directly or indirectly Article 4(2) of Geneva Convention III, 1949. Thus, generally, a person who does not fulfill the conditions which are stipulated in Article 4(A) (2) of Geneva Convention III 1949 shall be deemed as unlawful combatant. Nevertheless, a person who directly taking part in hostilities shall enjoy the protection of the Geneva Convention III 1949 until such times their status has been determined by a competent tribunal93 whether a lawful or unlawful combatant. An unlawful combatant may also be defined as any one taking part-directly or indirectly- in hostilities who did neither respect laws and customs of wars nor belong to one of the parties to the conflict and has no consistence with a combatant status.
1.5 Spies The collecting information clandestinely either in the area in which adverse armies are confronting each other or behind enemy lines is a recognized practice of warfare. The Law of Armed Conflict regards espionage as a crime. Any person, civilian or combatant, properly charged with espionage is entitled to trial, which may sentence him to death. This concept is already codified in the Lieber Code (1963), 94 the Brussels Declaration (1874)95 and the Hague Regulation (1977).96 This customary rule is now also codified in Additional Protocol I, 1977.97 Espionage may be defined as gathering or attempting to gather information of military value in territory occupied by an adverse party through an act undertaken of false pretences or deliberately in a clandestine manner. However, not all members of the armed forces of a party to the conflict who gather or attempt to gather information shall be considered as engaging in espionage. That is to say, if they gather or attempt to gather
92 93
Section948 (a) of the Military Commission Act of United States, 2006. Article 5 of Geneva Convention Relative to the Treatment of Prisoners of War, 1949 94 Article 88 of Lieber Code (1963) 95 Article 19 of Brussels Declaration (1974) 96 Article of Hague Regulations (1907) 97 Article of 46 of Additional Protocol I, 1977.
14 information while wearing their own uniform and without an act of false pretences or deliberately in a clandestine manner (for example wearing civilian attire or wearing the uniform of the adversary) shall not be considered as engaging in espionage.98 This may be called intelligence activities. Moreover, a member of the armed forces of a Party to the conflict who is a resident of territory occupied by an adverse party occur no responsibility for previous acts of espionage if subsequently captured.99 That is to say, if he was captured after that, he may not be treated as a spy. The same immunity attaches to a civilian spy who regains his national territory and subsequently falls into enemy hands.100However, civilian residents of occupied territory committing espionage or sabotage there may be punished for such acts whenever they are captured, even if not captured while engaged in the act in question.101 This is not so in the case of members of national liberation movements engaged neither in a conflict seeking self-determination, nor to members of properly organized guerrilla movements or of a levee en masse while engaged in those capacities.102 That is to say, the resistance fighter in occupied territory who, in civilian dress but without recourse to false pretences or a clandestine manner, attempts to gather information of military value, retains his status as a combatant. 103 In the event of a resistance fighter being arrested, not while he is gathering information of military value but, for instance, while he is in the process of transmitting by radio the information he has collected, the Occupying Power must treat him as a prisoner of war, in that case it is immaterial whether he collected the information with the aid of the false pretences or a clandestine manner, or otherwise,104since he is not captured while engaging in espionage. Besides, if a military spy is captured after he has rejoined his unit he is entitled to all the right of a combatant and incurs no liability for his previous act of espionage. 105 This concept can also be found in Article 46 (4) of Additional Protocol I, 1977.
98 99
Article 46 (2) and (3) of Additional Protocol I, 1977. Article 46 (3) of Additional Protocol I, 1977. 100 L.C Green, The Contemporary law of Armed Conflict, Manchester University, 1993, p. 142. 101 Ibid 102 L.C Green, The Contemporary law of Armed Conflict, Manchester University, 1993, p. 142. 103 First Kalshoven, Constraints on the Waging of War,Geneva, 1991, p. 79 104 Ibid 105 L.C.Green, The Contemporary Law of Armed Conflict, Manchester University, second edition, 2000, p. 120
15 1.6 Persons whose status is in doubt Generally, a person who directly or indirectly taking part in hostilities shall be considered as a combatant. If any doubt arise as to whether he is a combatant or not shall be determined by a competent tribunal.106 That is to say a competent tribunal shall determine whether a person, having fallen into the hands of the enemy, belongs to any of the categories enumerated, especially, in Article 4 of Geneva Convention III and Article 44 of Additional Protocol I of 1977. Article 5 of Geneva Convention III provides that, Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. However, the Commentary to G.C III mentions only two examples of these to whom Article 5 paragraph 2 would apply to deserters, and persons who accompany the armed forces and have lost their identity card.107 In fact, deserters do not lose their original status,108even if they join the armed forces of an adverse party.109 However their national authority may decide, in accordance with national authority may decide, in accordance with national law, that they are not to be treated as enemy combatants and prisoners of war, but as members of its own forces liable to trial for treason.110Besides, persons taking part in the fight without the right to do so are also liable to be prosecuted for murder or attempted murder, and might even be sentenced to capital punishment,111 except they are sufficiently well organized to be regarded as a resistance movement.112Thus, persons who accompany the armed forces without actually being enrolled in them need identity card to prove that they are attached to an army. However, the capacity in which the person was serving should be a
106
Article 5 of Geneva Convention Relative to the Treatment of Prisoners of War, 1949. 107 Jean S. Pictet, Commentary on the Third Geneva Convention Relative to the Treatment of Prisoners of War, Geneva, 1960,p. 77 108 Article 44 (5) of Additional Protocol I, 1977. 109 L.C.Green, The Contemporary Law of Armed Conflict, Manchester University, second edition, 2000, p. 119. 110 L.C.Green, The Contemporary Law of Armed Conflict, Manchester University, second edition, 2000, p. 119. 111 Jean S. Pictet, Commentary on the Third Geneva Convention Relative to the Treatment of Prisoners of War, Geneva, 1960, p. 77 112 L.C. Green, The Contemporary Law of Armed Conflict, Manchester University, second edition, 2000, p. 108
16 determining factor,113 when they fall into the hands of the enemy. The possession of a card is not therefore an indispensable condition of the right to be treated as a prisoner of war, but a supplementary safeguard.114 Therefore, even if they lose their identity cards, their status remain as prisoners of war until such time as their status has been determined by a competent tribunal.115On the other hand, in case of doubt whether a person is a civilian that person shall be considered to a civilian.116And it should be noted that no one can automatically attack anyone who might appear dubious.117 Finally, all those considerations demonstrate that no person would be outside the protection given by Geneva Conventions, especially, G.C III, 1949, during or after armed conflicts and it would apply in a cases of international armed conflict, whether a declared war or not even if the state of war is not recognized by one of them. Additional Protocol I also concerns with international armed conflicts. Especially Geneva Convention III 1949 and Additional Protocol I attempt to indicate a person who has a right to be treated as a combatant. Since combatants have the right to participate directly in hostilities, they incur no liability for that. Civilians have no right to participate in hostilities and if they do so they should be punished under their national law for their acts. However there has certain exception. Nowadays all members of the armed forces apart from medical and religious personnel are regarded as combatants. Thus, there is no need to classify whether a person who accompany with armed forces is a combatant or non-combatant. Generally civilian populations are considered as non-combatants. On the other hand, Prisoners of war, the wounded, sick and shipwrecked and others who are hors de combat are entitled to be treated as combatants, although no longer active. Unlawful combatants should not be considered as war criminals as long as they respect laws and customs of war. Nevertheless, all persons who engaged in hostilities, directly or otherwise, shall be protected as prisoners of war until such time as their status has been determined by a
113
Jean S. Pictet, Commentary on the Third Geneva Convention Relative to the Treatment of Prisoners of War,Geneva, 1960, pp. 64-65. 114 Jean S. Pictet, Commentary on the Third Geneva Convention Relative to the Treatment of Prisoners of War,Geneva, 1960, pp. 64-65. 115 According to Article 5 of Geneva Convention Relative to the Treatment of Prisoners of War, 1949. 116 Article 50 (1) of Additional Protocol I, 1977. 117 Jean-Marie Henckaerts and Louise Doswald Beck, Customary International Humanitarian Law, Vol I, Cambridge University, 2005, p. 24
17 competent tribunal even if their status is in doubt, as a maxim hominum causa jus consitutum est which means Law is established for the benefit of a man (mankind). Author: Moe Mynn Thu From: Myanmar Qualification: PhD Candidate